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Judgment
K.N. Basha, J.—The petitioners in all these petitions seeking the relief of direction to the respective police officers to register the First Information Report on the basis of the complaints given to the concerned and respective police officers.
Though this Court in number of earlier matters seeking for the similar relief directed the respective police officers to register the First Information Report if the allegation contained in the complaint constitutes cognizable offences, in view of the objection raised by Mr. Siva Ayyappan, learned Government Advocate (Criminal Side) placing reliance on the latest decision of the Hon''ble Apex Court in Sakiri Vasu v. State of U.P. reported in AIR 2008 SCW 309 contending that the petitioners cannot invoke the provision u/s 482 Cr. P.C. seeking for the relief of direction to the respondent police to register the First Information Report in the event of their failure to register the First Information Report in view of the alternative remedies available as per the provisions under Sections 154(3), 156 (3) and 200 Cr. P.C. as indicated by the Hon''ble Apex Court, this Court is constrained to post these batch of petitions in order to hear all the respective counsels for the petitioners on the legal issue involved in these matters.
In support of his contention the learned Government Advocate (Crl. Side) also placed reliance on the earlier decision of this Court in K.R. Ramkumar v. State reported in 2004 (1) T.N.L.R. 494 (Mad.) wherein it was held by a Single Judge of this Court (A.K. Rajan, J.) that if alternative remedy is provided, inherent power of High Court cannot be exercised u/s 482 Cr. P.C. merely because alternative remedy is a prolonged process.
The learned counsel for the petitioners made very interesting and impressive arguments by placing reliance on a catena of decisions of the Hon''ble Apex Court.
Mr. M. Ajmal Khan, learned counsel for the petitioners vehemently contended that the petitioners are entitled to invoke Section 482 Cr. P.C. for seeking the relief of direction to the respective police officers to register the First Information Report on the basis of their complaints constituting cognizable offences in view of the non-compliance of mandatory requirement contemplated u/s 154 Cr. P.C. by the respective police officers a The learned counsel for the petitioner heavily placed reliance on the decision of the Hon''ble Apex Court in Ramesh Kumari v. State (N.C.T. of Delhi) & Ors. reported in 2006 (2) Supreme 243 for the proposition that once the allegation contained in the complaint constitutes cognizable offence, it is the mandatory requirement on the part of the police officer to register the First Information Report u/s 154 Cr. P.C. and the Hon''ble Apex Court in that case directed the Central Bureau of Investigation to register the First Information Report.
Mr. M. Ajmal Khan, learned counsel further submitted that the Hon''ble Apex Court in Aleaue Padamsee v. Union of India reported in 2007 (3) SCC (Cri.) 1 only held that a writ petition under Article 226 of the Constitution of India is not maintainable for giving direction to the concerned police officer to register the First Information Report and the Hon''ble Apex Court has not excluded the power u/s 482 Cr. P.C. to give such directions to the police a It is contended by the learned counsel for the petitioners that in that decision petitions were filed under Article 32 of the Constitution of India and the petitioners have not filed any petition before the High Court.
Mr. Ajmal Khan, learned counsel has also placed reliance on the decision of the Hon''ble Supreme Court in Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another, , as the Hon''ble Supreme Court has held that,
The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar.... An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced.
Mr. Ajmal Khan, learned counsel would further contend that the alternative remedies indicated in Sakiri Vasu''s case by the Hon''ble Apex Court would amount only an obiter dictum and the same cannot be considered to be a ratio decidendi a It is contended that in that decision, the issue involved is entirely different and further that case was arising out of a dismissal of a writ petition filed under Article 226 of the Constitution of India seeking direction to CBI to conduct enquiry. In the SLP, the Order of the High Court was confirmed, however, some passing remarks and observations were made by their Lordships. That can be treated only as obiter dictum and not as ratio decidendi and such observations have no binding force as contemplated under Article 141 of the Constitution of India and the issue, viz., to register the complaint or not was not an issue before the Supreme Court in that decision.
In support of the above submission, the learned counsel would place reliance on the decision of the Hon''ble Apex Court in Som Mittal v. Government of Karnataka reported in AIR 2008 SCW 1640 and such decision was given in respect of the direction given by the another Bench of the Hon''ble Supreme Court in the very same case dated 29.01.2008 clarifying the position incorporated in para 13, which reads hereunder:
In so far as the observations, recommendations, and directions in paras 17 to 39 of the concurring judgment, suffice it to say that they do not relate to the subject matter of the criminal appeal and being the expression of an expectation or hope by only one of the learned Judges constituting the Bench and not agreed to by the other, is not a decision, order or direction of the Court. That being so, the directions issued to the Secretary General of the Supreme Court, State Governments and Union Territories, and recommendations to the Government of U.P. in the "aside" contained in Paras 17 to 39 of the concurring judgment are not directions to be complied with.
Mr. Ajmal Khan, learned counsel further contended that the complainant is entitled to choose any effective, speedy remedy and availability of the alternative remedy and invoking Section 156(3) Cr. P.C. will in no way limit the exercise of power u/s 482 Cr. P.C. a It is submitted that this Court can always exercise the power u/s 482 Cr. P.C. to secure the ends of justice and the scope of the power of the High Court u/s 482 Cr. P.C. was not considered by the Hon''ble Apex Court in Sakiri Vasu''s case.
Mr. M. Suri, learned counsel submitted that the Hon''ble Apex Court in Sakiri Vasu''s case has not excluded invoking the power u/s 482 Cr. P.C. by placing reliance on the findings of the Hon''ble Apex Court para 28 of that decision which reads hereunder :
It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.
The learned counsel for the petitioner also placed reliance on the decision of this Court in D. Prasanna Vs. State and Another, , wherein this Court has held that,
Section 154 (1) mandates the Station House Officer to register a case, if the information found in the complaint reflects the commission of a cognizable offence. The complaint given by the petitioner clearly discloses the commission of a cognizable offence. When the complaint is not registered even where there is allegation of the commission of a cognizable offence, directing the party to go through the long, lengthy and winding procedure in search of justice is totally unjustifiable.....Therefore, rejecting the plea of the counsel for the intervener/counter party and the respondent police that the Court cannot entertain a petition under S.482 of Code of Criminal Procedure, when alternative remedy is available and that writ jurisdiction alone will have to be invoked to redress the grievance, if any of the complainant. The respondent police is directed to register the complaint given by the petitioner forthwith.
Mr. R. Anburaj, learned counsel contended that this Court can very well give direction to the police invoking Section 482 Cr. P.C. to register the First Information Report if the allegation contained in the complaint constitutes cognizable offence. The learned counsel placed reliance on the following decisions :
(1) State of Haryana and others Vs. Ch. Bhajan Lal and others, ;
(2) Mohindro v. State of Punjab & Others reported in 2001 Cri.l.J.2587 (SC);
(3) Kuldip Singh Vs. State, ;
(4) Naurata Ram Vs. State of Haryana and Others, ;
(5) Gurjant Singh Vs. State of Punjab and Another, ;
(6) Munna Lal Vs. State of Himachal Pradesh and Others, ;
(7) Maya Devi v. State of Punjab reported in 1997 Cri.L.J. 4507;
(8) Smt. Gurmito v. State of Punjab & Others reported in 1996 Cri.L.J. 1254 P&H ; and
(9) Krishnan and another Vs. Krishnaveni and another, ;
Mr. R. Anburaj, learned counsel further submitted that not registering the First Information Report, in spite of the cognizable offence is made out in the complaint, would result in miscarriage of justice.
Mr. K. Samidurai, learned counsel placed reliance on the decision of the Hon''ble Supreme Court in Mohindro v. State of Punjab reported in 2001 Cri.L.J.2587 contending that the Hon''ble Apex Court has given direction to the police to register the First Information Report in the event of their failure to register the First Information Report in spite of the allegation contained in the complaint constitutes cognizable offences.
Mr. Shanmuga Raja Sethupathy, learned counsel for the petitioners contended that the remedy available u/s 156(3) Cr. P.C. is not a bar to approach the High Court invoking the power u/s 482 Cr. P.C. The learned counsel also placed reliance on the decision of the Hon''ble Apex Court in Ramesh Kumari''s case.
Mr. Peter Ramesh Kumar, learned counsel highlighted the difficulties of the aggrieved persons, viz., defacto complainants in the event of non-registration of the First Information Report by the police and resorting to invoke the provision u/s 156 (3) Cr. P.C. before the concerned Magistrates. It is submitted that the learned Magistrate, soon after the filing of such complaint, post the matter for check and call after a week or after a month and such delay results in miscarriage of justice as there is more possibility for the accused escaping from the arrest.
Mr. K.P. Narayana Kumar, learned counsel contended that as far as the Code of Criminal Procedure is concerned, it deals with the procedures regarding the Court, Executive Magistrates and Police Officers, etc. So it is only the procedures for the criminal justice delivery system. As far as Section 154 is concerned, it envisages to register a case if the cognizable offence has been made out and if violation of the procedures while performing their duty and dereliction on the part of the police officers, this Court is having ample power to interfere with that violation and in such situation writ jurisdiction or criminal jurisdiction etc. available under Article 226 of the Constitution of India or u/s 482 Cr. P.C. can very well be exercised.
Mr. R. Gandhi, learned counsel submitted that while considering the question to register the FIR, the Court cannot classify the offences and the same is not the intention of the legislature. Once the Court has come to the conclusion that the allegation contained in the complaint constitutes a cognizable offence, then the concerned police officer is to be directed to comply with the mandatory requirement contemplated u/s 154 Cr. P.C. to register the First Information Report.
Mr. R. Anand, leaned counsel submitted that the question of investigation is completely excluded by resorting to a private complaint procedure which would result in failure of justice. a It is further submitted that even in the cases of second revision for invoking the power u/s 482 Cr. P.C. the Hon''ble Apex Court has held that such petition may be entertained in order to prevent the miscarriage of justice.
Mr. M. Subash Babu, learned counsel for the petitioners contended that in the event of failure of the police officials to register the First Information Report in spite of cognizable offences made out in the complainant, then the High Court is having ample power u/s 482 Cr. P.C. to direct the concerned police officer to register the First Information Report. The learned counsel also placed reliance on the decision of this Court in V. Elango v. State reported in 2008 (1) MLJ (Cri.) 21.
Mr. K. Jeganathan, learned counsel for the petitioners vehemently contended that the alternative remedies available to the aggrieved and affected persons, viz., defacto complainants are not effective and speedy remedies. It is submitted that in the event of lethargic attitude of the police official to register the First Information Report in spite of the complaint disclosing cognizable offences, the affected persons have to run from pillar to post and they may loose the effective machinery to investigate into a particular offence alleged in the complaint which ultimately results in grave miscarriage of justice. a It is contended that in the event of filing a private complaint u/s 190 r/w 200 Cr. P.C. the investigation process is completely excluded as private investigation is not a recognised one. In order to highlight the significance and necessity of the investigation by the police, Mr. K. Jeganathan, the learned counsel heavily placed reliance on the decision of the Hon''ble Apex Court in Navinchandra N. Majithia v. State of Meghalaya & Ors. reported in 2000 (4) Crimes 118 : 2001 1 L.W. (Crl.) 265 (SC). Mr. K. Jegannathan, learned counsel for the petitioners would further contend that but for the investigation, the complainant may not able to succeed in collecting the evidence, arrest and recovery of the properties involved in the alleged offence.
Per contra, Mr. Siva Ayyappan, learned Government Advocate (Crl. Side) re-iterated his objections as stated above and further contended that the guidelines stipulated by the Hon''ble Apex Court in Sakiri Vasu''s case cannot be merely treated as obiter dictum and the same are having binding nature and as such the decision rendered by the Hon''ble Apex Court in Sakiri Vasu''s case has to be treated as ratio decidendi and not as obiter dictum. In support of such contention, the learned Government Advocate (Crl. Side) placed reliance on the following decisions of the Hon''ble Apex Court, viz.,
(i) The Oriental Insurance Company Limited Vs. Meena Variyal and Others, ;
(ii) State of Rajasthan v. Rohitas & Ors. reported in 2008 AIOL 3152 wherein, the Hon''ble Supreme Court has held as follows:
...Judicial discipline to abide by declaration of law by this Court, cannot be forsaken, under any pretext by any authority or Court, be it even the highest Court in a State, oblivious to Article 141 of the Constitution of India, 1950 (in short the "Constitution"). (iii) Chandramohan Pandurang Kajbaje v. State of Maharashtra & Ors. reported in 2008 AIOL 15 as the Hon''ble Supreme Court has held that,
Directions of Supreme Court - Such directions cannot be treated as only to be ''obiter dicta'' not to be ''ratio decidendi'' of the decision - High Court, held to be unjustified in treating observations of the Supreme Court in Chandramohan P. Kajbaje & Ors. and R.S. Makashi & Ors. SLP Nos. 28017 - 28024 of 1995 decided on 8.11.1996 and R.S. Makashi and Others Vs. I.M. Menon and Others, , respectively to be mere obiter dicta of the Court.
The learned Government Advocate (Crl. Side) further contended that the decision in Som Mittal v. State of Karnataka reported in 2008 AIR SCW 1640 was given on a different footing by the Hon''ble Supreme Court and the same is not applicable to the question involved in these matters.
Mr. Siva Ayyappan, learned Government Advocate (Crl. Side) further submitted that the power u/s 482 Cr. P.C. can be exercised only when no remedy is available and not for any specific remedy which is already provided by the statute and further submitted that the inherent power should be exercised sparingly, carefully with caution. The learned Government Advocate (Crl. Side) placed reliance on several decisions of the Hon''ble Supreme Court in support of his contentions, viz.,
(1) Khushi Ram v. Hashim reported in AIR 1959 SC 542 for the proposition that the power u/s 482 Cr. P.C. cannot be invoked in respect of any matter covered by specific provisions of the Code.
(2) Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, for the proposition that Section 482 Cr. P.C. can be exercised only when no remedy in available and not for specific remedy is provided by the statute.
(3) Janata Dal Vs. H.S. Chowdhary and Others, for the proposition that though the power u/s 482 Cr. P.C. are wide yet it should be used cautiously.
(4) Mary Angel & Others v. State of Tamil Nadu, etc. reported in 1999 (2) L.W.(Cri.) 426 for the proposition that when there is express provision governing the particular subject matter then there is no scope for invoking or exercising the inherent powers.
(5) Krishna Mochi & Ors. v. State of Bihar reported in 2002 (2) L.W. (Crl.) 858 for the proposition that Section 482 Cr. P.C. cannot be invoked to defeat the other provision of the Code but could be invoked only to give effect to it.
I have carefully considered the rival contentions put forward by either side and also perused the petitions and the respective complaints.
The crux of the matter is whether this Court can invoke the power u/s 482 Cr. P.C. for giving directions to the respective police officers to register the First Information Report in the event of the allegation contained in the complaint constitutes cognizable offences in view of alternative remedies available u/s 154(3), 156 (3) and 190 r/w 200 Cr. P.C.
Before proceeding to consider the main question involved in all these matters, as stated above, let met now consider the duty or obligation cast upon the police officer as per the provision u/s 154 Cr. P.C. in the event of receiving the information about certain cognizable offences.
It is pertinent to be noted that in a catena of decisions of the Hon''ble Apex Court, it was held that it is the statutory obligation of the police officers to register the First Information Report in the event of receiving any information in the form of complaints containing allegations constituting cognizable offences as mandated in the provision u/s 154 Cr. P.C. In a landmark decision in State of Haryana and others Vs. Ch. Bhajan Lal and others, the Hon''ble Apex Court has held as follows :
If any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. ''Reasonableness'' or ''credibility'' of the said information is not a condition precedent for registration of a case. The police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In Section 154(1) the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used.
In yet another decision in Ramesh Kumari v. State of (N.C.T. of Delhi) & Ors. reported in 2006 (2) Supreme 243, the Hon''ble Apex Court in placing reliance on its earlier decision in Bhajan Lal''s case has held that,
Genuineness or otherwise of the information can only be considered after registration of the case. Genuineness or credibility of the information is not a condition precedent for registration of a case.... The Provision of Section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of such an information disclosing cognizable offence.
The Hon''ble Apex Court in Lallan Chaudhary v. State of Bihar reported in 2006 (12) SCC 229 has taken a similar view.
The Hon''ble Apex Court in yet another latest decision in Aleque Padam-see v. Union of India reported in 2007 (3) SCC (Cri.) 1 has held that,
Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score.
The correct position of law, therefore, is that the police officials ought to register the FIR whenever facts brought to their notice show that cognizable offence has been made out.
It is to be seen that the principle laid down by the Hon''ble Apex Court in Ramesh Kumari''s case is not overruled by the subsequent decisions of the Hon''ble Apex Court and as on date such settled position of law holds good. Therefore, it is crystal clear that the provision u/s 154 Cr. P.C. is mandatory and as such if the police officials receive the information disclosing cognizable offences, it is the statutory obligation of the police official to register the First Information Report.
Now let me come to the crux of the matter, viz., that in the event of failure of the police officials to discharge their statutory obligation of registering the First Information Report in the event of allegation contained in the complaint constituting cognizable offences what would be the remedy to the aggrieved and affected person and whether such person is entitled to invoke the inherent power of this Court u/s 482 Cr. P.C. or to resort to other alternative remedies as contemplated under Sections 154(3) and 156 (3) Cr. P.C. or by filing a private complaint under Sections 190 r/w 200 Cr. P.C.
There are two sets of decisions rendered by the Hon''ble Apex Court in respect of the above said question involved in all these petitions.
The first set of decisions rendered by the Hon''ble Apex Court in the following decisions, viz.,
(1) Mohindro v. State of Punjab reported in 2002 SCC (Cri.) 1087 ;
(2) Ramesh Kumari v. State of (N.C.T. of Delhi) & Ors. reported in 2006 (2) Supreme 243;
(3) Lallan Chaudhary v. State of Bihar reported in 2006 (12) SCC 229; and
(4) Rajinder Singh Kotoch v. Chandigarh Administration reported in 2008 (1) M.L.J. (Cri.) 488 (SC) recognize the invoking of the power u/s 482 Cr. P.C. to give directions to the concerned police officials to register the First Information Report in the event of allegations contained in the complaint constituting cognizable offences as per the mandatory requirement contemplated u/s 154 Cr. P.C.
The Hon''ble Apex Court in the above said latest decision in Rajinder Singh Kotoch v. Chandigarh Administration reported in 2008 (1) M.L.J. (Cri.) 488 (SC) also taken a similar view to the effect that the police is legally bound to register a case u/s 154 Cr. P.C. if the allegations made in the complaint give rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned.
The second set of decisions rendered by the Hon''ble Apex Court, viz.,
(1) All India Institute of Medical Sciences Employees'' Union (Regd.) through its President Vs. Union of India (UOI) and Others, ;
(2) Gangadhar Janardan Mhatre Vs. State of Maharashtra and Others, ;
(3) Minu Kumari and Another Vs. The State of Bihar and Others, ;
(4) Hari Singh Vs. The State of U.P., ;
(5) Sakiri Vasu v. State of U.P. reported in AIR 2008 SCW 309; and
(6) Aleque Padamsee v. Union of India reported in 2007 (3) SCC (Cri.) 1
pointed out the modalities and other alternative remedies available to the aggrieved persons in the event of failure of the police officials to register the First Information Report in the event of the allegations contained in the complaint constituting cognizable offences.
Among the above said five decisions rendered by the Hon''ble Apex Court, the decision rendered in Sakiri Vasu''s case deals in respect of invoking the provision u/s 482 Cr. P.C. apart from invoking the writ jurisdiction under Article 226 of the Constitution of India for a direction to the concerned police official to register the First Information Report in the event of the allegations contained in the complaint constituting cognizable offences and also indicated the following alternative remedies, namely,
i. to approach the Superintendent of Police u/s 154 (3) Cr. P.C.;
ii. to approach the competent Magistrate u/s 156 (3) Cr. P.C.; and
iii. to file a private compliant u/s 190 r/w 200 Cr. P.C.
The affected and aggrieved persons can very well adopt the above said modalities by resorting to alternative remedies under the above said provisions depending upon the nature of the offence and facts and circumstances of each case. But, however, in certain complicated, serious and heinous crimes, the investigation by police is just and necessary to protect the interest of the defacto complainants depending upon the facts and circumstances of such case and the above said alternative remedies cannot be stated to be speedy and effective remedies.
It is to be noted that the affected and aggrieved persons are even now invoking the above said provisions under Sections 154 (3) Cr. P.C. and 156 (3) Cr. P.C. seeking for the relief of direction to the police to register the First Information Report and investigate into the matter. It is further relevant to be noted that after invoking the said provisions u/s 154 (3) Cr. P.C. and u/s 156 (3) Cr. P.C. in the event of failure on the part of the police officials to perform their statutory duty by registering the First Information Report, the aggrieved persons have to resort to the provision u/s 200 Cr. P.C. by filing a private complaint and in such event defacto complainants deprived of the investigation by the police, the defacto complainants have to forego the investigation by the police as private investigation is not permitted and recognised under the law and as such, the aggrieved person is left with no other alternative except to knock the doors of the High Court by invoking the provision u/s 482 Cr. P.C. as certain complicated, serious and heinous crimes require to be investigated by the police for the purpose of arrest, seizure and for collection of evidence, otherwise, it would result in grave, miscarriage of justice to the defacto complainants.
At this juncture, it is relevant to refer the decision rendered by the Hon''ble Apex Court in respect of the significance and necessity of police investigation in Navinchandra N. Majithia v. State of Meghalaya & Ors. reported in 2000 (4) Crimes 118 (SC) which reads hereunder:
"Investigation" is defined in Section 2(h) of the Code as including "all the proceedings under this Code for the collection of evidence conducted by police officer or by any person (other than a magistrate) who is authorised by a magistrate in this behalf". Hence no proceedings outside provision of the Code can be dragged into the contours of investigation. In other words, any proceedings falling outside the ambit of the Code will not be regarded as investigation for the purpose of the Code. Under the scheme of the Code, investigation commences with lodgment of information relating to the commission of an offence. If it is a cognizable offence, the officer-in-charge of the police station to whom the information is supplied orally has a statutory duty to reduce it to writing and get the signature of the informant. He shall enter the substance of the information, whether given in writing or reduced to writing as aforesaid, in a book prescribed by the State in that behalf. The Officer-in-charge has no escape from doing so if the offence mentioned therein is a cognizable offence, whether or not such offence was committed within the limits of that police station. But when the offence is non-cognizable, the officer-in-charge of the police station has not obligation to regard it if the offence was not committed within the limits of his police station.
....
Investigation thereafter would commence and the investigating officer has to go step by step. The Code contemplates the following steps to be carried out during such investigation:
(1) Proceeding to the spot; (2) ascertainment of the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of - (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a magistrate for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet u/s 173.
The Hon''ble Apex Court in the very same decision has held that,
The Code does not recognise private investigating agency. If any person is interested in hiring any such private agency, he may do so at his own risk and cost, but such investigation would not be regarded as investigation made under law.
Therefore, it is crystal clear that the investigation by police officials is absolutely necessary in respect of certain offences and as such if the attempts made by the aggrieved persons by resorting to provision u/s 154 (3) Cr. P.C. by making representation to the Superintendent of Police and approaching the learned Magistrate u/s 156 (3) Cr. P.C. are failed, then they are left with no other alternative except to approach this Court invoking the provision u/s 482 Cr. P.C. to seek the relief. Therefore, let me now find out the solution and remedy for the aggrieved persons in the light of the latest decision of the Hon''ble Apex Court in Sakiri Vasu v. State of U.P. reported in AIR 2008 SCW 309.
Though Mr. M. Ajmal Khan, learned counsel has taken enormous pain to contend that the observations and guidelines stipulated by the Hon''ble Apex Court in Sakiri Vasu''s case can be treated only as obiter dictum and not as ratio decidendi, this Court is not able to accept such contention. It is pertinent to be noted that the Hon''ble Apex Court in the said decision highlighted the scope of the provision u/s 156 (3) Cr. P.C. apart from pointing out the provision contained u/s 154(3) Cr. P.C. and u/s 200 Cr. P.C. indicating the alternative remedies available to the aggrieved persons in the event of non-registration of the First Information Report by the police official. It is further relevant to be noted that the Hon''ble Apex Court directed the Registry to circulate the said decision to all the High Courts in India.
At this juncture, it is pertinent to be noted that even in the decision of the Hon''ble Apex Court relied by the learned counsel for the petitioners in Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another, , it was held by the Hon''ble Apex Court that,
...even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight..... When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate court to follow the decision of the Supreme Court.
But, however the fact remains that the Hon''ble Apex Court in Sakiri Vasu v. State of U.P. reported in AIR 2008 SCW 309 has not altogether excluded the High Courts from exercising the power u/s 482 Cr. P.C. to secure the ends of justice. It is relevant to note that in para 25 of the said decision of the Hon''ble Apex Court it was held that,
We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition u/s 482, Cr. P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly u/s 154(3) an Section 36 Cr. P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate u/s 156 (3).
The Hon''ble Apex Court has also observed in that decision as follows :
The High Court should discourage the practice of filing a writ petition or petition u/s 482, Cr. P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police.
In yet another paragraph in the very same decision, it is indicated by the Hon''ble Apex Court which reads hereunder:
It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.
Therefore, it is crystal clear that the Hon''ble Apex Court in Sakiri Vasu''s case has not closed the doors once for all to the affected and aggrieved persons to knock the doors of the High Court invoking the provision u/s 482 Cr. P.C. in the event of police officials not complying with the mandatory requirement contemplated u/s 154 Cr. P.C. by discharging their statutory obligation to register the First Information Report on the basis of the complaints disclosing cognizable offences.
The Hon''ble Apex Court even in Ramesh Kumari v. State of (N.C.T. Delhi) & Ors. reported in 2006 (2) Supreme 243 while holding that the provision u/s 154 Cr. P.C. is mandatory on the part of the concerned police officer to register the First Information Register also held that,
...The ground of alternative remedy nor pending of the contempt petition would be no substitute in law not to register a case when a citizen makes a complaint of a cognizance offence against the Police Officer.
The Division Bench of the Delhi High Court in Kuldip Singh Vs. State, has held that,
It is the duty of all organs including judiciary to protect human rights and, therefore, it is necessary to provide safeguards for early recording of the crime and control of police by judiciary which would be negated if it is left to the Police to decide in which case to register the crime on disclosure of commission of cognizable offence and in which defer it pending enquiry.
The affected and aggrieved de-facto complainants with agony, anguish and anxiety approaching the police officials for the purpose of setting the law in motion by furnishing the information regarding the cognizable offence''s require immediate and effective action on the part of the police and if the police official is indifferent in taking action on such complaints, then the possibility of the culprits escaping from the clutches of law cannot be ruled out.
It is very painful for this Court to point out that only due to the inaction of the police officials due to their indifferent and lethargic attitude in dealing with the complaints constituting cognizable offences, the aggrieved persons have been compelled to invoke the provision u/s 482 Cr. P.C. as they have been left with no other effective and alternative remedy. This Court even in an earlier decision in V. Elango v. State reported in 2008 (1) M.L.J. (Cri.) 21 pointed out that only because of the inaction on the part of the police officials to discharge their statutory obligation, the High Court is flooded with petitions u/s 482 Cr. P.C. seeking for the relief of direction to the police officials to register the First Information Report on the basis of the complaint constituting cognizable offences. It is also pointed out by this Court that non-performance of such statutory obligation of the police officials would amount to dereliction of duty. This Court also pointed out that it is high time for the Director General of Police of the State to instruct all the police officials, viz., Station House Officers throughout the State to discharge their statutory obligation by complying with the mandatory requirement contemplated u/s 154 Cr. P.C. in its letter and spirit.
It is to be appreciated and commended that the Director General of Police of the State recently announced that the facility of launching complaints through e-mail would be introduced soon to the cities and districts in a phased manner and stated that the police would take cognizance of the complaint if any offence was made out. This Court is also place it on record the commendable service rendered by the police by taking prompt action on the basis of the complaints given by the affected persons in recent cases of kidnapping of the kin of the affected persons for ransom and securing the victims within a shortest time.
It is to be pointed out that certain offences which are not serious in nature and facts and circumstances may not require immediate investigation by police and for such cases, the aggrieved parties can very well resort to the above said alternative remedies indicated by the Hon''ble Apex Court in Sakiri Vasu''s case. It is needless to state, as stated in the earlier portion of this order, certain grave, serious, heinous and complicated cases require immediate registration of the First Information Report and quick investigation otherwise, the culprits may escape from the clutches of law resulting grave miscarriage of justice to the affected and aggrieved persons.
This Court already pointed out in the earlier portion of this order that the Hon''ble Apex Court in Sakiri Vasu''s case has not altogether excluded the exercise of power u/s 482 Cr. P.C. by this Court. It is well settled by a catena of decisions of the Hon''ble Apex Court that the power u/s 482 Cr. P.C. may be exercised under the following three circumstances, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of the Court, and (iii) to otherwise secure the ends of justice. Therefore, considering the seriousness, gravity and complication of each case, this Court can give direction to the police to register the First Information Report, if the allegation contained in the complaints constitutes cognizable offence in the event of their failure to register the First Information Report, by exercising the power u/s 482 Cr. P.C. to secure the ends of justice and such power has to be exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the Section itself.
In a batch of similar matters filed u/s 482 Cr. P.C. in Crl. O.P. Nos. 28785 to 28787 of 2004 etc., dated 01.02.2008, my learned Brother Judge has held that,
The entire text of the aforesaid judgment would make it clear that when alternative modality has been contemplated under Sections 154(3), 190 read with 156(3) and Section 200 of the Code of Criminal Procedure, the High Court should ordinarily refuse to invoke the inherent jurisdiction as provided u/s 482 of the Code of Criminal Procedure. The term "ordinarily" and the phrases "should not encourage" and "should discourage" have been employed by the Honourable Supreme Court in its wisdom to mean that Section 482 of the Code of Criminal Procedure shall not be a thoroughfare but an emergency exist for the aggrieved litigants. In my considered opinion, the aforesaid decision of the Honourable Supreme Court does not take away the entire inherent jurisdiction conferred on the High Court u/s 482 of the Code of Criminal Procedure. Therefore, ordinarily, the aggrieved party shall not approach the Court invoking the inherent jurisdiction and the Court also shall not casually direct the investigating officer to register the cases of all varieties.
I respectfully agree with the view of my learned Brother Judge. In the said order, the learned Brother Judge has classified certain offences which would require immediate inspection of the scene of crime, recovery of material objects and collection of other potential evidence in heinous crimes may be highly warranted such as the commission of the offences of murder, dowry death, attempt to murder wherein the victim sustained grievous injuries, robbery, dacoity, rape and attempt to rape. I am of the considered view that the above categorization and classification of offences are only illustrative and not exhaustive and this Court can very well exercise the power u/s 482 Cr. P.C. in order to secure to ends of justice in respect of other serious and complicated offences depending upon the facts and circumstances of each case and this Court cannot stipulate hard and fast rule by classifying certain offences. There is no frequent grievances in respect of the petitions filed u/s 482 for the serious offence of murder, dowry death, attempt to murder, robbery, dacoity, rape and attempt to rape and only certain exceptional cases police have not taken immediate action. Therefore, this Court cannot brush aside the undisputed fact that even in certain other offences, namely, abetment to commit suicide, forgery, cheating involving land grabbing and other offences of cheating involving huge amounts, misappropriation, kidnapping for ransom and kidnapping minor girls, etc.,, the police investigation is just and essential to fix and arrest the culprits and thereafter, to recover the articles and to collect the other evidence to prove the case before the Court of law, otherwise it would result in grave miscarriage of justice to the defacto complainants.
It is seen that in certain matters, the accused filed impleading petitions and intervening petitions and raised objections for granting the relief of direction to register the First Information Report. It is well settled that the accused has no locus standi to interfere at the stage of registration of the First Information Report and even after the registration of the First Information Report, the accused has no right to interfere in the investigation. However, with a view to give opportunity to make their submissions to the respective learned counsels who have filed intervening and impleading petitions, the following Criminal petitions may be listed for further hearing :
Crl. O.P. Nos. 9605 of 2006, 10533, 5276 of 2007, 6468, 7248, 7384, 9591, 10625, 11887, 11940, 12533, 2000 of 20C8, 812 and 1045 of 2008;
In the light of the above well settled principle of law laid down by the Hon''ble Apex Court and the findings of this Court, the following petitions are allowed directing the respective and concerned respondent police to register the First Information Report as the allegation contained in the respective complaints constitutes commission of cognizable offence, and investigate into the matter in accordance with law and file the final report as expeditiously as possible :
Crl. O.P. Nos. 3769 of 2007,3849,4090, 4987, 6020, 6069, 7036, 7284, 7378, 7645 8207, 8285, 8352, 8549, 8898, 8966, 8992, 9871,10220, 10343, 10503, 10549, 10701, 10941, 11011, 11054, 11173, 11943, 11992, 13234, 13342,13405,13450,14 of 2008, 39, 90, 107, 115, 116,168, 185, 204, 235, 244, 250, 279, 321, 369, 386, 405, 419, 456, 529, 540, 647, 650, 728, 822, 903, 904, 909, 924, 1023, 1032, 1099, 1100, 1102, 1103, 1116, 1138, 1283, 1298, 1491, 1508, 1536, 1563, 1564, 1570, 1579, 1599, 1630, 1632, 1659, 1688, 1698, 1741, 1743, 1771, 1808, 1850, 1852, 1884, 1892, 1900, 1903, 1907, 1975, 2039, 2042, 2089, 2128, 2227, 2255, 2301, 2373, 2384, 2491, 2509, 2527 of 2008.
In the light of the above findings and reasons, the following petitions are dismissed and it is open to the petitioners to adopt the modalities of resorting to alternative remedies as indicated by the Hon''ble Apex Court in Sakiri Vasu v. State of U.P. reported in AIR 2008 SCW 309 by presenting the complaint to the Superintendent of Police u/s 154 (3) Cr. P.C. or by invoking the provision u/s 156 (3) Cr. P.C. or by filing a private complaint u/s 200 Cr. P.C.
Crl. O.P. Nos. 1960 of 2007, 2437, 6534 6585, 6963, 7176, 7195, 7450, 7840, 8464, 8656, 9365, 9497, 10399, 10618, 10801, 11055, 11514, 11706, 12003, 13100, 13337, 13367, 13430,13454,13459,13460 of 2007, 33 of 2008, 49, 91, 175, 202, 243, 257, 268, 290, 325, 334, 347, 389, 392, 448, 476, 592, 654, 731, 762, 781, 811, 893, 902, 966, 969, 1001, 1024, 1044, 1072, 1096, 1109, 1115, 1185, 1189, 1202, 1210, 1419, 1421, 1526, 1565, 1572, 1694, 1754, 1833, 1966, 2053, 2054, 2146, 2148, 2302, 2335, 2461, 2500 of 2008;
The following Criminal Original Petitions are dismissed on the basis of the submission of the learned Government Advocate to the effect that the cases were already registered by the respondent police as stated below:
(i) Crl. O.P. No. 10489 of 2007 - Case registered in Crime No. 237 of 2007 u/s 323 IPC
(i) Crl. O.P. No. 129 of 2008 -Cases registered in Crime Nos. 3, 4 and 5 of 2008
(iii) Crl. O.P. No. 1487 of 2008 - Case registered in Crime NO. 54/2008
(iv) Crl. O.P. No. 1857 of 2008 - Case registered in Crime NO. 18 of 2008 for the offence u/s 174 Cr. P.C.
The following Criminal Original Petitions are dismissed recording the submission of the learned Government Advocate (Crl. Side) to the effect that no such complaint or petitions are pending on the file of the respective respondent police:
Crl. O.P. Nos. 3830 of 2007, 292, 1498, 1629, 1964, 2019, 2418 of 2008.
The following Criminal Original Petitions are dismissed recording the submission of the learned Government Advocate to the effect that the cases were closed for the reasons as stated below :
(l) Crl. O.P. No. 3520 of 2007 - Closed as civil in nature;
(2) Crl. O.P. No. 6025 of 2007 - Already closed ;
(3) Crl. O.P. No. 7790 of 2007 - Already closed ;
(4) Crl. O.P. No. 8967 of 2007 - Com-promised between the parties ;
(5) Crl. O.P. No. 460 of 2008 - Already closed;
(6) Crl. O.P. No. ll86 of 2008 - Closed as civil in nature;
(7) Crl. O.P. No. l917 of 2008 - Closed as false complaint;