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2025 Supreme(Online)(MAD) 7180
HIGH COURT OF MADRAS
P.DHANABAL, J
s.l.anish – Appellant
Versus
the state of tamilnadu – Respondent
Crl.O.P.(MD)No.4339 of 2025
Mr.J.Pandi Dorai, Mr.M.Sakthi Kumar No. 1 Government Advocate(Crl.Side)
A Magistrate must issue a speaking order under Section 156(3) of the Cr.P.C. and cannot direct an enquiry without assessing if a cognizable offence is made out.
Headnote:(A) Criminal Procedure Code, 1973 - Section 156(3) - Judicial order - The learned Magistrate directed the police to conduct an enquiry instead of registering a First Information Report despite prima facie material indicating a cognizable offence - The order was deemed unsustainable as it failed to apply judicial mind and lacked specificity. (Paras 6, 7, 8, 9)
Facts of the case:
The petitioner, a defacto complainant, alleged human rights violations and sought to register a FIR against several respondents. After no action was taken by the police, he approached the Magistrate, who issued a vague order for enquiry without registering the FIR.
Findings of Court:
The Magistrate's order was found to lack a proper judicial basis, necessitating a more detailed approach to the complaint under Section 156(3) of the Code.
Issues: The primary issue was whether the Magistrate's order complied with the requirements of Section 156(3) by properly assessing the prima facie material for a cognizable offence.
Ratio Decidendi: The court held that a Magistrate must pass a speaking order when assessing a complaint under Section 156(3) and cannot merely send the matter for enquiry without determining if a cognizable offence exists.
Result: Petition allowed, order set aside.
ORDER
This Criminal Original Petition has been filed to set aside the order passed by the learned Judicial Magistrate No.II, Kuzhithurai, Kanyakumari District in Crl.M.P.No.5385 of 2024 dated 06.07.2024.
2. The learned counsel appearing for the petitioner would submit that the petitioner is the defacto complainant and he filed a petition under Section 156(3) of Cr.P.C seeking direction to register the First Information Report as against the respondents 2 to 6. Infact the petitioner is graduate in Bachelor of Science and he is serving as a President, Munchirai Taluk Committee, Democractic Youth Federation of India and he is also a member of Munchirai Taluk Committee, Communist Party of India(Marxist). The petitioner and one Chellasamy were subjected to inhuman treatment violating their human rights and privacy by the second respondent and were also brutally attacked by respondents 3 to 5. Further the sixth respondent abused the petitioner in order to protect the respondents.
Therefore he lodged a complaint before the Nithravilai Police Station/sixth respondent on 15.03.2024 but no action was taken. Hence he filed complaint before the Superintendent of Police on 03.04.2024 no ction was taken. Therefore he filed a petition before the learned Judicial Magistrate No.II, Kuzhithurai in Crl.M.P.No.5385 of 2024 and the learned Magistrate passed order directing the first respondent to enquire the petition and file a report. The learned Magistrate closed the petition and directed the first respondent to conduct enquiry. The learned Magistrate had not applied the mind but simply ordered to conduct enquiry and submit a report by the concerned police. The learned Magistrate ought to have directed the first respondent to register First Information Report and investigate the case once satisfied the prima facie material available, instead only passed two line order to enquire the petition, if it thinks fit proceed by law and file a report, therefore the order passed by the learned Magistrate is liable to be set aside. To support his contention he also relied on the orders passed by this Court Mohamed Noufal .vs. Habib Mohamed @ Yasar in Crl.O.P(MD) No.9896 of 2023 and Manimaran .vs. The Inspector of Police, Manamadurai Police Station , Manamadurai and others in Crl.O.P(MD) No.21081 of 2023 .
3. Since the present petition pertaining to the pre taking cognizance stage the right of ordinance to the private respondents is dispensed with.
4. The learned Government Advocate(Crl.Side) appearing for the first respondent would submit that the petitioner herein has filed a petition under Section 156(3) before the learned Judicial Magistrate No.II, Kuzhithurai and the learned Magistrate had directed the first respondent to enquire the petition if it thinks fit proceed by law and file report before the Court as early as possible but now the respondent is enquiring the matter. In the meantime, the present petition has been filed
5. Heard both sides and perused the materials available on record.
6. In this case the petitioner has filed a petition under Section 156(3) before the learned Judicial Magistrate No.II Kuzhithurai and the learned Magistrate has passed the following order:
“Petitioner present, heard , Records persued. Prima facie documents also produced hence this Court hereby directed to ASP, Colachel to enquiry this petition if it thinks fit proceed by law and file report before this Court as early as possible”
7. So far as order under Section 156(3) of Cr.P.C., is concerned it is a judicial order and after applying mind the court has to pass orders. In this case the order passed by the learned Magistrate is only two line order and without applying the mind the learned Magistrate has passed order. More over, once the petition filed under Section 156(3) of Cr.P.C., the learned Magistrate has to pass speaking order after applying his mind and the Magistrate ought to have directed the first respondent to register First Information Report and not to conduc
