23 July 2020

Writ petition u/A 226 is not maintainable against inaction of police in registration of FIR

Investigation is the function of the police and writ court cannot be converted as an investigation agency.


   Indeed that Section 39 of the Cr.P.C enables the public to set the criminal law in motion, but if the officer in-charge, fails to register an FIR, the Hon'ble Supreme Court as well as this Court, in the above decisions have considered whether the only remedy open to the complainant or the first informant or the member of public to approach the High Court under Article 226 of the Constitution of India and that there is no other remedy provided under any other law, and answered that writ is not the remedy.[Para No.103]

   It is clear from the above provisions in the Cr.P.C., that if the police did not register a case on the basis of a complaint filed by the complainant, then he has got a remedy in the Code of Criminal Procedure, by approaching the jurisdictional Magistrate under Section 156(3) of the Code or even file a private complaint under Section 190 read with Section 200 of the Code, and when a complaint is filed, then the Magistrate has to conduct enquiry under Sections 200 and 202 of the Code, and if the Magistrate is satisfied on the basis of the materials produced before that court that commission of an offence has been prima facie made out, then the Magistrate can take cognizance of the case and issue process to the accused under Section 204 of the Code. If the Magistrate is not satisfied with the materials produced and if he is satisfied that no offence has been made out, then the Magistrate can dismiss the complaint under Section 203 of the Code.[Para No.104]

Writ petition u/A 226 is not maintainable against inaction of police in registration of FIR
   Even if the Station House Officer commits a mistake in arriving at the conclusion that the allegations are not sufficient to attract the ingredients of commission of a cognizable offence, even this Court cannot invoke the power under Article 226 of the Constitution of India, go into the question as to whether non satisfaction by the Station House Officer is proper or not, to issue a writ of mandamus or other writs directing the Station House Officer to register a crime as it is a matter to be considered by the Magistrate under Section 190 read with Section 200 of the Code on a complaint filed by the aggrieved party on account of the inaction on the part of the police in not registering case in such cases. If an enquiry has to be conducted for satisfaction regarding the commission of offence, then it is not proper on the part of the High Court to invoke the power under Article 226 of the Constitution of India and parties must be relegated to resort to their statutory remedy available under the Code in such cases. After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Police also does not register an FIR or no proper investigation is done, the aggrieved person can approach the Magistrate concern under Section 156 (3) of Cr.P.C. Without resorting to the procedure as contemplated in the Cr.P.C, the petitioner has approached this Court under Article 226 of the Constitution of India.[Para No.105]

   In view of the discussions made above, since the petitioner has got an efficacious and alternate remedy available under the Code, if there is inaction on the part of the Station House Officer in not registering a case on the basis of the complaint given by him, the petitioner cannot take recourse to this Court for issuance of writ of mandamus or other writ, to the Station House Officer to register a crime and to investigate the case as claimed by the petitioner.[Para No.106]

   The petitioner has solely relied on the statement of the Leader of the Opposition and contended that if it is true, the matter requires investigation. As such, he has no evidence or material, and that is why he has prayed for an interim direction, as stated above. Investigation is the function of the police and writ court cannot be converted as an investigation agency.[Para No.109]

   Remedy under Article 226 of the Constitution of India is extraordinary. Exercise of power to entertain a writ petition arises if only the person, who alleges inaction on the part of the statutory authorities, has no other alternative and efficacious remedy under the Statute. True, the Hon'ble Apex Court has also held that there is no fetters in entertaining a writ petition under Article 226 of the Constitution of India, whether a person complains of violation of his fundamental or statutory right, but at the same time, it should be borne in mind that
if there is an adequate and efficacious remedy available to such person, to vindicate his grievance, then the self imposed restraint on the writ court to exercise the extraordinary jurisdiction shall be applied and such person should be relegated to avail the statutory remedy.[Para No.111]

   In the light of the decisions of the Hon'ble Supreme Court as well as this Court, and our conclusion that no writ of mandamus can be issued, we do not propose to delve into other rival contentions as to whether, the State Government could have written to the Central Government to include the allegations relating to corruption also.[Para No.113]

   As the writ petition itself is not maintainable, there is also no need to go into the issue as to whether, National Investigation Agency while investigating any Scheduled Offence may also investigate any other offence which the accused is alleged to have committed, if the offence is connected with the Scheduled Offence. Therefore, judged from any angle, we are of the view, petitioner has not made out a case for issuance of a writ of mandamus.[Para No114]

Kerala High Court

Michael Varghese
Vs.
Honourable Shri Pinarayi Vijayan

Decided on 22/07/2020





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