Allowed

Mohamed Rafiq, v. The State of Tamil Nadu

Madras HC18 Jan 2024WP/29860/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition holding that police officers have no jurisdiction to settle cognizable offences through compromise or to direct the return of property in lieu of stolen items. The Court directed the respondents to initiate departmental disciplinary proceedings and appropriate criminal proceedings against the police officials involved within four weeks.

What did the court decide?

Direction to initiate departmental disciplinary proceedings and appropriate criminal proceedings against respondents 3 and 4 within four weeks.

Mohamed Rafiq, Vs The State of Tamil Nadu — Writ and Judicial Review | Madras HC (2024)

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2024:MHC:5892

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WP No.29860 of 2016

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 18-01-2024

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CORAM

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THE HONOURABLE MR.JUSTICE S.M. SUBRAMANIAM

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WP No.29860 of 2016

Mohamed Rafiq

.. Petitioner

-vs-

1.The State of Tamil Nadu, Represented by its Secretary to Government, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.

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2.The Commissioner of Police, No.132, EVK Sampath Salai, Vepery,

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Chennai-600 007.

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3.Prabhu, The Inspector of Police (L&O), S-8, Adambakkam Police Station,

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Chennai.

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https://www.mhc.tn.gov.in/judis

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WP No.29860 of 2016

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4.Kanniappan, The Sub Inspector of Police (L&O), S-8, Adambakkam Police Station, Chennai. .. Respondents

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Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the respondents 1 and 2 to take appropriate action on the complaint of the petitioner both criminal and departmental disciplinary action against the respondents 3 and 4 and further direct the respondents to ensure that the 10-1/2 sovereigns of gold jewels taken from the petitioner's wife be returned to the petitioner.

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For Petitioner : Mr.A.Mohamed Ismail For Respondent-1 : Mr.G.Ameedius, Government Advocate. For Respondent-2 : Mr.V.Meganathan, Government Advocate (Criminal Side) For Respondents-3 and 4: No Appearance (Notice Served)

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WP No.29860 of 2016

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O R D E R

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The writ on hand has been instituted to direct the respondents 1

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and 2 to take appropriate action on the complaint submitted by the petitioner both criminal and departmental disciplinary action against the respondents 3 and 4 and further direct the respondents to ensure that the 10-1/2 sovereigns of gold jewels taken from the petitioner's wife be returned to the petitioner.

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The petitioner states that on 26.01.2016, his son had gone to his wife's sister Smt.Rose Banu's house at Adambakkam. The son of the petitioner had arrived at Chennai City in connection with a correction work relating to his Birth Certificate for the purpose of securing passport. The son of the petitioner returned back to his house and thereafter the husband of Smt.Rose Banu Mr.Mohamed Arif had given a complaint to the Inspector of Police, Adambakkam Police Station, alleging that the jewels kept in the bureau in his house were stolen and on that day, the son of the petitioner was residing in their house.

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WP No.29860 of 2016

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The defacto complainant mainly contended that there is a

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possibility of theft of gold jewelleries by the son of the petitioner and the complaint received on 23.02.2016 was taken on file and CSR copy was issued by the Adambakkam Police Station on 24.02.2016.

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On the very same day, the petitioner and his wife were called

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upon to participate in the inquiry on 23.02.2016. Immediately, the petitioner and his wife went to Adambakkam Police Station.

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The learned counsel for the petitioner Mr.A.Mohamed Ismail

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would contend that even before issuing CSR copy, the petitioner and his wife were subjected to harassment by the Police Officials at Adambakkam Police Station. Several allegations are raised against the Police Officers by the petitioner in the affidavit filed in support of the present writ proceedings. Finally, the gold jewelleries belonged to the wife of the petitioner was forcibly taken in the presence of Police Authorities and were handed over to the defacto complainant Mr.Mohamed Arif.

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WP No.29860 of 2016

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The apprehension by the defacto complainant was that the

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son of the petitioner could have stolen the jewels from the house of the

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defacto complainant. Merely based on the said apprehension, the Police

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Authorities called upon the petitioner and his wife to Adambakkam Police Station and forcibly instructed the petitioner and his wife to hand over their jewelleries in lieu of the stolen jewelleries to the defacto complainant, which was complied with by the petitioner and his wife in the presence of the Police Officials at Adambakkam Police Station.

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The learned counsel for the petitioner would submit that the

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copy of the CSR was given on the next day i.e., on 24.02.2016. Thereafter, the petitioner submitted a representation and sent a complaint to the Home Secretary on 17.03.2016 for initiation of action against the Police Officers, who have ill-treated the petitioner and his wife and forcibly taken away their gold jewelleries and handed over the jewelleries to the defacto complainant in lieu of the stolen jewelleries as per the allegations raised by the defacto complainant in his complaint.

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The learned Government Advocate (Criminal Side)

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WP No.29860 of 2016

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appearing on behalf of the second respondent would oppose the contentions

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raised on behalf of the petitioner by stating that the parties had compromised themselves before the Police Officers and the Police Officers had merely obtained statements from the defacto complainant and the petitioner along with his wife and therefore, they have not committed any irregularity and more-so, the complainant along with his wife had voluntarily offered to hand over their gold jewelleries in lieu of the alleged stolen jewelleries as per the complaint given by the defacto complainant.

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The learned Government Advocate, appearing on behalf of the first respondent would also oppose by stating that the respondents have acted at the request of the parties, since they have expressed their willingness to settle the matter. The Officials have acted with the bona fide belief that the parties intended to settle the matter and thus the present writ petition is to be rejected.

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Considering the arguments as advanced between the

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respective learned counsel appearing on behalf of the parties to the lis on hand, primarily the power exercised by the Police Officials of Adambakkam

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WP No.29860 of 2016

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Police Station in settling the matter between the parties, are found to be directly in violation of the provisions of the Criminal Procedure Code.

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With reference to allegations of theft on receipt of complaint from the defacto complainant, FIR is to be registered and an investigation is to be undertaken by following the procedures as contemplated. If at all the allegation of theft is based on the mistake of fact or motive or otherwise, then a Report is to be filed before the Competent Criminal Court of Law for the purpose of closure of the case in the manner known to law.

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The Police Officials have no authority or jurisdiction to entertain any such compromise between the parties in respect of cognizable offences and direct any one of the parties to return the jewelleries, in lieu of the stolen jewelleries. Such a practice, if permitted, would lead to anomalous situation, where the Police Station be converted as Criminal Court of Law. In other words, the Police Authorities are not expected to usurp the powers of the Competent Criminal Court in the matter of dealing with such offences, which all are cognizable.

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WP No.29860 of 2016

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Under Section 320 of the Criminal Procedure Code, no doubt, an offence under Section 379 is compoundable. Therefore, the Police Officers are bound to conduct an investigation, ascertain the truth and file a Report before the Competent Criminal Court for the purpose of compounding the offences, wherein the parties also will be given an opportunity to place the facts by way of statements, depositions etc.

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The counter-affidavit filed by the Deputy Commissioner of Police, St. Thomas Mount District, Chennai-16 would reveal that there was a complaint by Mr.Mohamed Arif, S/o.Abdul Hameed, No.10, Kakkan Nagar, 3^rd Cross Street, Adambakkam, Chennai-600 088 as against one Mr.Ansari, S/o.Mohamed Rafiq, No.4/34, Ramar Koil Street, Alandurpakkam, Tiruvallur District, who is none other than his wife's sister's son. While Mr.Ansari's temporarily stayed in the house of the defacto complainant, he had taken 3-1/2 sovereigns of gold bangles, 4 sovereigns of gold chain and 3 sovereigns of gold chain, totally 10-1/2 sovereigns of jewels subsequently found missing by the defacto complainant from the bureau in the residence of the defacto complainant.

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Admittedly, the complaint was given and CSR No.74 of

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2016 dated 24.02.2016 was issued. The second respondent, in the counteraffidavit, had stated that in furtherance of the enquiry, it was admitted by Mr.Ansari that he took the jewels to repay debt that incurred in his business. The father of Mr.Ansari and mother Smt.Sakila Banu offered their jewels in lieu of the stolen jewels. Mr.Mohamed Arif considering the close relationship with the opposite parties took the jewels offered by his cobrother's family and not insisted to pursue the complaint. The written statements were obtained from both side to that effect before the respondents 3 and 4.

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The entire incident occurred within the Police Station

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premises were acknowledged by the Deputy Commissioner of Police, St.Thomas Mount District, Chennai-16 in his counter-affidavit filed on behalf of the second respondent. The counter-affidavit filed by the Deputy Commissioner of Police would be sufficient to draw factual inference that the Police Authorities have not only exceeded their limits, but violated the provisions of the Criminal Procedure Code by not registering the case and

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WP No.29860 of 2016

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investigating the complaint in the manner known to law.

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In the present case, no FIR has been registered. Admittedly,

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the stolen jewels were not recovered even now. The whereabouts of the stolen jewels were not known either to the defacto complainant or to the Investigating Authorities.

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Contrarily, the Police Authorities at Adambakkam Police Station simply forced the petitioner and his wife to hand over 10-1/2 sovereigns of gold jewelleries to the defacto complainant in lieu of the stolen jewelleries, which is improper and therefore, this Court has no hesitation in forming an opinion that the respondents 3 and 4 had acted illegally and exercised their powers beyond their jurisdiction or authority. Such compromises with reference to cognizable offences, cannot be made in violation of the procedures as contemplated under Criminal Court of Law. More-so in the present case, the stolen jewelleries were not returned, but the alternate jewelleries were returned in lieu of the stolen jewelleries, which raises further doubt in the minds of the Court that what transpired between the Police Officials, while dealing with such cases.

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The learned counsel for the petitioner would raise several allegations against the Police Officials by stating that the petitioner and his wife were handcuffed and treated badly in Adambakkam Police Station and they were forcibly asked to give their jewelleries weighing 10-1/2 sovereigns to the defacto complainant for the purpose of settling the issues.

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Pertinently, the son of the petitioner was a person against whom the allegation of theft was raised. But the petitioner and his wife, who were innocent, were ill-treated by the Police Officials in Adambakkam Police Station and forcibly asked them to hand over the jewelleries belonged to the wife of the petitioner.

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Overall facts and circumstances would be sufficient to arrive an irresistible conclusion that the respondents 3 and 4 have not only committed lapses, negligence, dereliction of duty, warranting departmental disciplinary proceedings, under Service Rules, but allegedly committed an offence of extortion. Thus criminal action also to be initiated with reference Page 11 of 14

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WP No.29860 of 2016

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to the complaint given by the writ petitioner and his wife.

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With reference to the relief sought for by the petitioner in the present writ petition for return of jewelleries forcibly taken away by the Police Authorities from the wife of the petitioner in Adambakkam Police Station, the respondents 1 and 2 shall consider the same after conducting departmental enquiry into the allegations raised by the petitioner. The petitioner is at liberty to submit a copy of the complaint along with the documents, if any, setting out the facts and details.

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Accordingly, the respondents 1 and 2 are directed to initiate departmental disciplinary proceedings against the respondents 3 and 4 and initiate appropriate criminal proceedings under the relevant provisions and by following the procedures as contemplated. The said exercise is directed to be done within a period of four weeks from the date of receipt of a copy of this order.

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WP No.29860 of 2016

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With the above directions, the present writ petition stands

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allowed. However, there shall be no order as to costs.

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18-01-2024

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Index : Yes/No Internet: Yes/No Speaking order/Non-Speaking order Neutral Citation : Yes/No Svn

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1.The Secretary to Government, State of Tamil Nadu, Home, Prohibition and Excise Department, Fort St. George, Chennai-600 009.

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2.The Commissioner of Police, No.132, EVK Sampath Salai, Vepery, Chennai-600 007.

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3.Mr.Prabhu,

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The Inspector of Police (L&O), S-8, Adambakkam Police Station,

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Chennai.

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4.Mr.Kanniappan,

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The Sub Inspector of Police (L&O), S-8, Adambakkam Police Station,

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Chennai.

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WP No.29860 of 2016

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S.M.SUBRAMANIAM, J.

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WP 29860 of 2016

18-01-2024

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https://www.mhc.tn.gov.in/judis

Mohamed Rafiq, v. The State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

Mohamed Rafiq, v. The State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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