M.Vimalathithan v. The State Rep By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.01.2016
CORAM
THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.No.9655 of 2012 Contempt Petition No.1624 of 2011 Crl.O.P.No.9655 of 2012 M.Vimalathithan S/o.P.Mahendran ... Petitioner vs 1.The State represented by The Inspector of Police, Kangeyam Police Station, Tirupur.
2.The Deputy Superintendent of Police, Kangeyam (Taluk), Tirupur District.
3.The Superintendent of Police, O/o.The Superintendent of Police, C.B.C.I.D Head Quarters, Government Estate, Chennai - 2.
... Respondents Criminal Original Petition filed under section 482 of the Code of Criminal Procedure, seeking transfer of investigation in Crime No.512 of 2009 dt. 30.06.2009 on the file of first respondent to the file of third respondent.
Contempt Petition No.1624 of 2011:
M.Vimalathithan S/o.P.Mahendran ... Petitioner vs 1.Palaniappan, The Inspector of Police, Kangeyam Police Station, Tirupur.
2.Aasaithambi, The Deputy Superintendent of Police, Kangeyam (Taluk), Tirupur District.
... Respondents Contempt Petition filed u/s.11 of the Contempt of Courts Act, 1971, praying to punish the respondents for violating the order of this Court passed in Crl.O.P.No.27321 of 2010 on 29.11.2010.
for both Cases:
For Petitioner :
Mr.V.Subramanian For Respondents:
Mr.C.Iyyapparaj, Government Advocate [crl.side] C O M M O N O R D E R Crl.O.P.No.9655 of 2012 has been preferred seeking transfer of investigation in Crime No.512 of 2009 on the file of first respondent to the file of third respondent.
2. Contempt Petition No.1624 of 2011 has been filed against the non-compliance of the order of this Court passed in Crl.O.P.No.27321 of 2010 on 29.11.2010.
3. Heard learned counsel for petitioner and learned Government Advocate [Crl.side].
4. Petitioner has long been pursuing a case registered in Crime No.512 of 2009 on the file of first respondent on 30.06.2009 in relation to the death of his mother. The case was registered on the information given by the Village Administrative Officer. Eventually, the investigation has met a dead end, whereupon a referred charge sheet informing the case as 'undetected' has been filed on 26.08.2013. The same has now been taken up for consideration by the Judicial Magistrate and notice there regards stands served upon the petitioner. Status reports and counters have been filed on various dates in proceedings before this Court. As against the contention of petitioner that one Nallamaal who had knowledge of the occurrence had not been examined, it is seen that she indeed had been examined quite early.
Subsequently, the said Nallamaal has died owing to a road accident about one year after the occurrence relating to the death of the mother of the petitioner. Given the distance in point of time between the two deaths, this Court accepts the contention on behalf of respondents that there is no connection between the two. Various status reports and counters filed by the State inform that several officers have investigated the case as has a special team constituted by the Superintendent of Police.
circumstances this Court dismisses the Criminal Original Petition and leaves it open to the petitioner to move by way of protest petition, if such a course is considered appropriate. Of course, the respondents is also upon duty to further investigate the matter in keeping with Section 173(8) Cr.P.C., if any further information relating to the case comes to their knowledge.
5. In the result, (i)Crl.O.P.No.9655 of 2012 shall stand dismissed. (ii)Contempt Petition No.1624 of 2011 shall stand closed. Learned Government Advocate [Crl.side] submits that the charge sheet had been prepared on 26.08.2013 and submitted before the Judicial Magistrate, but there has been delay in the Judicial Magistrate considering the same. It is an oft stated position and in every case of such nature, the truth or otherwise of the same is incapable of assessment. There is no register maintained at the Magisterial level towards recording the receipt of the final report. Time and again, this Court has bemoaned the practice of Magistrates not taking up for consideration final reports submitted u/s. 173(2) Cr.P.C. immediately upon receipt thereof.
While the need to do so hardly can be over emphasized, we have to, though grudgingly, acknowledge that the failure of the Magistrates could be occasioned by the pressure of work of the present day. The danger of defeating such indefeasible right by an errant Investigating Officer filing the final report at a later date but informing of having done so on an earlier one and within the time prescribed, hardly can be gain said.
Section 167(2) Cr.P.C. reads as follows:
"(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police." (Italicized emphasized) Upon expiry of the period prescribed in Section 167(2) Cr.P.C., the accused, in the event of final report not being filed, obtains an indefeasible right to bail. In certain special enactments, the time frame varies and in some it is subjected to variance on the Court being satisfied that the same is necessary. However, without exception, the breach results in indefeasible right to bail flowing to the accused. Generally, final reports are filed before Judicial Magistrates and in cases which Magistrates are not competent to try, cognizance is taken by the competent trial Court only upon committal to them under Section 209 Cr.P.C.
However, some special enactments provide for taking of cognizance of offences by the competent trial Court without committal thereto. In the circumstances, it is directed that all Judicial Magistrates in the State shall maintain individual registers for Calender Cases and Preliminary Register Cases and as below informed.
Preliminary Register Cases:
Sl.
No.
Police Statio n and Crime No.
Date of F.I.R .
Date of filing final report under Section 173(2) Cr.P.C.
Initia l of Court Office r Date of Return of Final Report, if any reasons there for Date of resubmissi on Initi al of Court Offic er 1.
2.
Calender Cases:
Sl.
No.
Police Statio n and Crime No.
Date of F.I.R .
Date of filing final report under Section 173(2) Cr.P.C.
Initia l of Court Office r Date of Return of Final Report, if any reasons there for Date of resubmissi on Initi al of Court Offic er 1.
2.
Other Courts empowered to take cognizance of offences without committal being made to them, shall maintain the Register in the form provided herein above for preliminary register cases.
It would be open to the State to improve upon the manner in which such registers are to be maintained.
The Registry is directed to forward a copy of this order to the entire subordinate judiciary for compliance. Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar gm To 1.The Inspector of Police, Kangeyam Police Station,Tirupur.
2.The Deputy Superintendent of Police, Kangeyam (Taluk),Tirupur District.
3.The Superintendent of Police, O/o.The Superintendent of Police, C.B.C.I.D Head Quarters, Government Estate,Chennai - 2.
+ 1 cc to M/s. V. Subramanian, Advocate Sr.5696 Copy to: The Registry General, High Court, Madras.(with a request to forward a copy of this order to the entire subordinate judiciary for compliance).
Crl.O.P.No.9655 of 2012 and Contempt Petition No.1624 of 2011 SAI(CO) Eu 29.04.16