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]

   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]

Arbitrator can pass an award directing specific performance of an agreement of sale

Point 3: This point becomes relevant because if the arbitrators cannot grant specific performance, a point can be raised under Section 34(2)(b)(i) that the subject matter of the dispute is not capable of arbitration. [Para No.35]

   One of the points raised in the grounds in this Court is that the grant of specific performance is discretionary and the discretion to grant or not to grant specific performance has been conferred by the Specific Relief Act, 1963 on the Civil Court and hence the arbitrator cannot be deemed to have been empowered to grant such a relief. [Para No.36]

    We may point out that the Punjab High Court in Laxmi Narayan vs. Raghubir Singh [AIR 1956 Punjab 249] the Bombay High Court in Fertiliser Corporation of India vs. Chemical Construction Corporation [ILR 1974 Bombay 856/858 (DB)] and the Calcutta High Court in Keventer Agro Ltd. vs. Seegram Comp. Ltd. [Apo 498 of 1997 & Apo 449 of (401)] (dated 27.1.98) have taken the view that an arbitrator can grant specific performance of a contract relating to immovable property under an award. No doubt, the Delhi High Court in M/s PNB Finance Limited vs. Shital Prasad Jain & Others [AIR 1991 Del. 13] has however held that the arbitrator cannot grant specific performance. The question arises as to which view is correct. [Para No.37]

   In our opinion, the view taken by the Punjab, Bombay and Calcutta High Courts is the correct one and the view taken by the Delhi High Court is not correct. We are of the view that the right to specific performance of an agreement of sale deals with contractual rights and it is certainly open to the parties to agree - with a view to shorten litigation in regular courts - to refer the issues relating to specific performance to arbitration. There is no prohibition in the Specific Relief Act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. Nor is there such a prohibition contained in the Arbitration and Conciliation Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or section 48(5)(b) of the English Arbitration Act, 1996 which contained a prohibition relating to specific performance of contracts concerning immoveable property. [Para No.38]