IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.T. SELVAM, J.
C. Prabhakaran S/o Chandran Chettiyar – Petitioner
Versus
State Rep. by Inspector of Police, Royapuram Police Station – Respondent
Crl. O.P. Nos. 5651 of 2013, 6557, 7647, 8810, 8792 of 2014, 10993, 11101, 11103, 11151 of 2017
Decided On : 20-09-2017
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 2 - Indian Evidence Act - Section 27 - Narcotic drugs/psychotropic substances - Commission of cognizable offences - Psychotropic substance – Definition of - Seeking a direction to respondent police to register a case for alleged offences, based on petitioners complaints and to investigate the case - It is with some regret but an even more brooding sense of responsibility that a fault of any one of brother/sister Judges would attach not to the individual in error but to this great Court of which we Judges are but cogwheels in administration of justice till date we have done our time and wane away, that I enter upon this task - Held, Many a senior counsel has expressed misgivings over criminal appeals being dismissed at stage of admission - Many inform that petitions seeking suspension of sentence pending appeal are not even taken up for consideration - This is disconcerting if one keeps in mind that right of one appeal is a constitutional right. Should it not concern us that many senior counsel inform of being of view that it was time to hang up their gowns? When senior counsel express such views can Advocates to whom tomorrow belongs be blamed for suffering in silence and on consideration of shelf-life of a Judge? Spineless subservience has never been and never can be hallmark of an Advocate - A counsels position is one of utmost difficulty - He is not to speak of that which he knows; he is not called upon to consider, whether facts with which he is dealing are true or false - What he has to do, is to argue as best he can, without degrading himself, in order to maintain proposition which will carry with it either protection or remedy which he desires for his client - If amidst difficulties of his position he were to be called upon during heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do duty which he is called upon to perform - Court have no reason to think that if Advocates went about their arduous task courteously and without disrespect, Judges of this Court would, within reasonable limits, permit them to pursue their persuasions –Order accordingly.
1. These petitions have been filed under Section 482 Cr.P.C. seeking a direction to respondent police to register a case for alleged offences, based on petitioners complaints and to investigate the case.
2. Heard learned counsel for petitioners and learned Additional Public Prosecutors.
3. A bare reading of complaints inform commission of cognizable offences. The concerned respondent police are directed to register cases thereon and proceed further in accordance with law.
4. These Criminal Original Petitions are disposed of with the above direction.
5. It is with some regret but an even more brooding sense of responsibility that a fault of any one of the brother/sister Judges would attach not to the individual in error but to this great Court of which we Judges are but cogwheels in the administration of justice till the date we have done our time and wane away, that I enter upon this task. The task is made more arduous in that in explaining my cause, I enter upon an exercise which I would not advocate.
6. I have reserved orders in the above petitions towards expressing views on the decision of this Court in Crl. O.P. Nos. 19197, 19198, 19343 and 19359 to 19363 of 2016 dated 27.09.2016 reported in 2016 (5) CTC 577 informing that petitions seeking directions towards registration of complaint were not maintainable and making out a case for reference thereon. The decision of this Court in Crl. O.P. No. 28352 of 2017 informing such petitions to be maintainable relieves the litigant much anguish, anxiety and saves them from the pillar to post exercise set out in decision reported in 2016 (5) CTC 577 and though I am unable to subscribe to the reiteration of a time table expressed in the order in Crl. O.P. No. 28352 of 2017 dated 10.07.2017, I would now leave the reference upon the earlier order to be made by one more able.
7. When Mr. Justice Markandey Katju observed that something was rotten with the Allahadbad High Court, it was not out of disrespect to his parent High Court. Rather, it was an expression of his anxiety and concern that no harm befall such august institution. It is with similar sentiment and in the hope that this Chartered High Court would continue to smell of roses that I ask that we hold a mirror to ourselves.
8. When it has been the practice of this Court, both before and after the decision of the Supreme Court in Lalita Kumari vs. Government of Uttar Pradesh and Others, 2013 (4) Crimes 243 (SC), to issue directions to register complaints, is it not to be expected that if a contra view as found in decision reported in 2016 (5) CTC 577 is held, the same would invite a reference and not a decision of a Co-ordinate Bench/Single Judge with the dictum:
Note: The Registry is directed to place a copy of this Order before the Hon'ble Chief Justice for a direction to circulate this Order to all the Magistrates in Tamil Nadu and Puducherry.
9. The decision of the Division Bench of this Court in Sudalaimani vs. State, 2014 (4) CTC 593, again authored by the same Judge ostensibly declares per incuriam the decision of the Supreme Court in Shajin vs. State, 2013 (2) CTC 593 but in effect the judgment of Division Bench of this Court in Mottai Thevar AIR 1952 Madras 586 which has held the field for well over 65 years, has been undone. It states thus:
“27. We are aware that if a Division Bench dissents with the view of a Co-ordinate Division Bench, then the matter should be referred to a Full Bench for resolution. In this case, all the Division Benches have given the benefit of a Police confession obtained during the course of investigation to the Accused relying upon either Mottai Thevar's case or Aghnoo Nagesia's case. We are not disagreeing with the proposition of law laid down in Mottai Thevar's case or Aghnoo Nagesia's case. We are simply following them after noting that in the said two cases the Accused surrendered to th
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