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2014 Supreme(Mad) 4386
Before the Madurai Bench of Madras High Court
S. VAIDYANATHAN, J.
S. Inbaraj
Versus
The Superintendent of Police & Another
Crl.O.P (MD)No. 22281 of 2014 & M.P(MD) Nos. 1 & 2 of 2014
Decided on : 19-12-2014
Ajmalkhan, Senior Counsel, G. Thalaimutharasu, R. Anand, Advocates. K. Chellapandian, Addl. Advocate General, A.P. Balasubramani, Govt. Advocate (Crl. Side).
The main legal point established in the judgment is the necessity of a preliminary inquiry to ascertain whether a cognizable offence is disclosed before registering an FIR, emphasizing the importance of fair investigation.
Headnote:
FRAUD - Criminal Procedure - Section 362, Section 482 - The court discussed the power of the High Court under Section 482 of the Criminal Procedure Code and the circumstances under which the inherent jurisdiction may be exercised. The court also considered the duty of the police to register an FIR and the necessity of a preliminary inquiry to ascertain whether a cognizable offence is disclosed. The judgment highlights the importance of fair investigation and the limitations on the High Court's power to alter or review its own judgment.
Fact of the Case:
The petitioner sought a direction to register a complaint with the police, alleging fraud and misrepresentation by the respondent police in submitting a closure report. The court analyzed the events leading to the petition and the contentions of the parties.
Finding of the Court:
The court found that a preliminary inquiry is mandatory to decide whether the offence is cognizable before registering an FIR. It rejected the petitioner's request to direct the police to register the case, emphasizing the importance of fair investigation and the need for a preliminary inquiry.
Issues: The issues revolved around the duty of the police to register an FIR, the necessity of a preliminary inquiry, and the power of the High Court under Section 482 of the Criminal Procedure Code.
Ratio Decidendi: The court held that a preliminary inquiry is mandatory to ascertain whether a cognizable offence is disclosed before registering an FIR. It emphasized the importance of fair investigation and the limitations on the High Court's power to alter or review its own judgment.
Final Decision: The Criminal Original Petition was disposed of, and the earlier closure report was cancelled, allowing the respondent police to decide the matter afresh in accordance with the law.
1. This petition is filed seeking a direction to the 2nd respondent to take the complaint dated 01.12.2014 made by the petitioner into investigation and register the same in accordance with law and file final report before the concerned Judicial Magistrate within the time limit that may be stipulated by this Court.
2. M.P(MD).No.1 of 2014 has been preferred by the petitioner, praying to recall the order dated 16.06.2014, passed in Crl.O.P.(MD)No.22281 of 2014, dated 08.12.2014.
3. M.P(MD).No.2 of 2014 has been filed on behalf of S.P. Shanmuganathan, Minister of State Tourism, Tamil Nadu, praying to implead the petitioner as one of the respondent in the recalling petition filed by the third respondent in M.P(MD)No.1 of 2014 in Crl.O.P.(MD)No.22281 of 2014.
4. This Court, by an order dated 08.12.2014, disposed of the Criminal Original Petition in Crl.O.P(MD)No.22281 of 2014, permitting the petitioner to avail alternative remedy available to him in accordance with law as on the complaint dated 01.12.2014, the police submitted a closure report dated 07.12.2014 before this Court and also handed over the copy to the Senior Advocate appearing for the petitioner.
5. On 09.12.2014, the learned Counsel appearing for the petitioner mentioned before this Court that the petitioner has received summons dated 06.12.2014 asking him to appear on 09.12.2014 at 10.00 a.m and hence, the closure report should not be accepted as it has been created for the purpose of this case. Apart from that, according to him misrepresentation and fraud have been played by the respondent police in sending the closure report dated 07.12.2014 at 10.19 a.m, on 08.12.2014 just before the commencement of the Court hours. There was no enquiry conducted by the police, as it could be seen from the summons dated 06.12.2014.
6. He has contended that when there is a fraud on the part of the respondent police and as there is a misrepresentation of the fact, that the closure report has been hurriedly prepared and suppressing the enquiry to be held on 09.12.2014, an order has been obtained fraudulently and hence the original order can be recalled. He relied upon the decision of this Court, wherein on 10.12.2014, I have rejected the petition to recall the order invoking the inherent powers of this Court under Section 482 of Criminal Procedure Code (in short 'Cr.P.C.), as there is a bar under Section 362 Cr.P.C., and that in paragraph 25' has observed that in the rarest of the rare cases, the High Court can recall its own judgment if it has been obtained by fraud. In paragraph 25' the word 'review' has been erroneously mentioned and it should read as 'recall'.
7. Mr. R.Anand, learned Counsel appearing in M.P (MD)No.2 of 2014, who has also filed a petition to implead/intervene in the petition, contended that once the order has been passed, for recalling the said order he is entitled to be heard and he has objection to recall the order. He has admitted for an order to be obtained registering the complaint, in view of the decision reported in Anju Chaudhary vs. State of U.P reported in 2013 Crl.L.J 776 SC, the intervenor has no locus standi, but, however is entitled to be heard in the petition to recall. When the intervenor has locus standi in the main petition, he has no locus standi in the intervening petition in the Miscellaneous petition to recall. The relevant paragraphs are extracted below:
"30. The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall withstand judicial scrutiny. The purpose of the Criminal Procedure Code and the Indian
