K.Mohammed Khaja Faizudeen, v. The Commissioenr Of Police,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.03.2019

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN W.P.No. 11874 of 2018 K. Mohammed Khaja Faizudeen ... Petitioner Vs.

1. The Commissioner of Police, City Police Commissioner Office, Vepery, Chennai- 7.

2. The Inspector of Police, Central Crime Branch, Chennai.

3. G. Balasubramanian ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India seeking Writ of Mandamus, directing the respondents 1 & 2 herein to take appropriate action against the 3rd respondent doing kanthuvatti business violating the Money Lenders Act besides recovering the blank signed cheques, pronotes and non judicial stamp papers of the petitioner and his wife, on his petition dated 20.01.2018.

For Petitioner : Mr.S.Radhakrishnan For Respondents: Mr.M.Mohamed Riyaz, Additional Public Prosecutor -R1 & R2 No Appearance - R3

O R D E R

This writ petition has been filed seeking directions to the respondents 1 & 2 herein to take appropriate action against the 3rd respondent doing kanthuvatti business violating the Money Lenders Act besides recovering the blank signed cheques, pronotes and non judicial stamp papers of the petitioner and his wife, on his petition dated 20.01.2018.

2. Though the petitioner has sought for directions to the respondents 1 & 2 herein to take appropriate action against the 3rd respondent, the learned counsel for the petitioner submits

that the relief may modified to the effect that the 2nd respondent police be directed to register his complaint dated 20.01.2018 and take appropriate action.

3.

By consent, the writ petition itself is taken up for final disposal.

4.

In view of the Judgment of the Hon'ble Division Bench of this Court in Crl.O.P.(MD)No.13681 of 2018 and batch of cases, dated 20.09.2018, the petition of this nature is not maintainable before this Court. The relevant portion of the said order is extracted herewith:- "35.Accordingly, we answer the references in the following manner, while giving certain directions:

(i) Section 482 Cr.P.C. cannot be invoked in all circumstances.

(ii) It is not an alternative remedy to Section 156(3) Cr.P.C. but a repository of inherent power.

(iii) The normal course of remedy on a failure or refusal to record the information is Section 156(3) of the Code of Criminal Procedure after due compliance of Section 154(3) Cr.P.C. (iv) A petition can be filed invoking the inherent jurisdiction of this Court only after the completion of 15 days from the date of receipt of the information by the Station House Officer. The Registry shall not receive any petition before the expiry of 15 days aforesaid.

(v) No petition shall be entertained without exhausting the remedy under Section 154(3) Cr.P.C. (vi) An informant can send substance of the information to the Superintendent of Police on knowing the decision of the Station House Officer in not registering the case and proceeding with the preliminary enquiry.

After conducting the preliminary enquiry, the Station House Officer's decision in either registering the compliant or closing it will have to be intimated to the informant immediately and in any case not later than 7 days. Once such a decision is made, the informant cannot invoke Section 482 Cr.P.C.as the remedy lies elsewhere.

(vii) The directions issued by the Director General of Police in the circulars referred are to be strictly complied with by all the Station House Officers.

(viii) The affidavit to be filed shall contain particulars regarding the date of complaint, receipt and the date of sending substances of the information to the superintendent of Police under Section 154(3) Cr.P.C. and its receipt. The Registry shall not number any petition without due compliance.

(ix) This Court is not bound to direct the police to register the complaint in all cases not withstanding the breach of time table furnished in Lalitha Kumari's case.

(x) The judicial Magistrates, while dealing the petitions under Sections 156(3) Cr.P.C. are directed to keep in mind the narratives in Lalitha Kumari's case with specific reference to the cases, which might require a preliminary enquiry before issuing a direction to investigate and after careful perusal of the complaint. The other directions issued by the learned Single Judge in Sugesan Transport's case are upheld.

(xi) Eschewing Section 156(3) Cr.P.C. is only on exceptional and rarest of rare cases. Monstrosity of the offence, extreme official apathy and indifference, need to answer the judicial conscience, and existence of hostile environment are few of the factors to be borne in mind to bring a case under the rarest of rare one."

However, liberty is granted to the petitioner to work out his remedy in accordance with the guidelines given by the Hon'ble Division Bench in the decision referred supra. 5.

With the above observations, this Writ Petition is disposed of. No costs.

Sd/- Deputy Registrar //True Copy// Sub Assistant Registrar ak To

1. The Commissioner of Police, City Police Commissioner Office, Vepery, Chennai- 7.

2. The Inspector of Police, Central Crime Branch, Chennai.

3. The Public Prosecutor, High Court, Madras.

W.P.No.11874 of 2018 gp[co] srg 17/06/2019