S.K. Moizuddin, v. The Director General Of Police

HON'BLE SRI JUSTICE P. KESHAVA RAO WRIT PETITION No.11700 of 2013 ORDER:

Heard the learned counsel for the petitioners and the learned Government Pleader appearing for respondent Nos.1 to 3.

The prayer in the writ petition is as follows: ".... to issue an appropriate writ or order or direction more particularly in the nature of Mandamus declaring the action of the respondents in not taking any action on the representation dated 07.03.2013 as illegal, arbitrary and against the principles of the natural justice and abuse of process of law, colorable exercise of official powers, malafide and violative of Articles 14 and 21 of the Constitution of India thereby consequently direct the respondents 1 to 4 to take appropriate action as per law against respondent No.5 by initiating thorough enquiry and investigation." The case of the petitioners is that they owed small amount to one Giri and paid back certain amounts. But, the said Giri demanded the petitioners to pay huge amounts by adding heavy interest.

The said Giri utilized the services of Respondent No.5, who introduced himself as police constable, and intimidated and threatened the 1st petitioner and made him to issue four cheques in favour of respondent No.5. Though the petitioners are not liable to pay any amount to respondent No.5, on his pressure, the 1st petitioner executed the cheques, stamp papers and blank papers in his favour and thereafter the 5th respondent filed a case under the provisions of the Negotiable Instruments Act in C.C.No.65 of 2012 on the file of the Special Court at Hayathnagar.

their further case that respondent No.5 has managed issuance of summons and obtained non-bailable warrant against the 1st petitioner and arrested him along with others on 26.02.2013 and taken to Hayathnagar police station. Thereafter, the 5th respondent called the 2nd petitioner to the police station and threatened the petitioners stating that he will kill them and their family members, if they did not transfer the property bearing plot No.3 admeasuring about 405 square yards in Sy.Nos.69/A and 70/AA situated at Munaganur village, Hayathnagar Mandal, R.R. District in his favour. In those circumstances, the 1st petitioner made a complaint before the 4th respondent, but he refused to take the same. Therefore, having no alternative, he filed representation before respondent Nos.1 to 3 on 07.03.2013, but so far no action has been taken. Questioning the said inaction on the part of respondent Nos.1 to 4, the present writ petition is filed.

Learned counsel for the petitioners contended that respondent Nos.1 to 4 are duty bound to register a crime when once the complaint discloses commission of a cognizable offence. In fact, the complaint discloses commission of a Prima facie offence against respondent No.5. However, no action has been taken.

Per contra, the learned Government Pleader appearing for respondent Nos.1 to 3 contended that the writ petition is not maintainable, since the petitioners have got a remedy

under Section 190 read with Section 200 Cr.P.C., against the inaction on the part of respondent Nos.1 to 3 in registering a crime.

Having heard both the counsel and from a perusal of the material on record, the admitted facts are that pursuant to the complaint lodged by the petitioners, respondent No.1 to 4 failed to register any crime, though commission of prima facie case is made out, according to the petitioners. In this regard, Chapter XII of the Code of Criminal Procedure, 1973, contemplates information to the police and their powers to investigate. Sections 154 and 156 Cr.P.C., relate to the information in cognizable cases and the powers of the police officers to investigate cognizable cases. When information is brought before the police about commission of any alleged offence, which is cognizable, the concerned police officer is duty bound to register the crime. However, when the police officer fails to register a crime, the aggrieved party can resort to the provisions of Chapter XV of the Code and lodge a complaint before the concerned Magistrate.

In Aleque Padamsee and others vs. Union of India and others1, the Apex Court had considered the similar issue and held as under:

"6. "4. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the 1 (2007) 6 SCC 171

Code. In case the Magistrate, after recording evidence, finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and could issue process to the accused.

These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd) v. Union of India ((1996) 11 SCC 582). It was specifically observed that a writ petition in such cases is not to be entertained. The above position was again highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra [(2004) 7 SCC 768], Minu Kumari and another v. State of Bihar and others ((2006) 4 SCC 359) and Hari Singh v. State of U.P. (2006 (5) SCC 733).

7.

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 only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences case (supra) and reiterated in Gangadhar case (supra) the remedy available is as set out above by filing a complaint before the Magistrate.

Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences case (supra), Gangadhar case (supra), Hari Singh case (supra), Minu Kumari case (supra) and Ramesh Kumari case (supra), we find that the view expressed in Ramesh Kumari case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences case (supra), Gangadhar case (supra), Minu Kumari case (supra) and Hari Singh case (supra). The view expressed in Ramesh Kumari case (supra) was re- iterated in Lallan Chaudhary and others v. State of Bihar (AIR 2006 SC 3376).

The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences case (supra), Gangadhar case (supra), Hari Singh case (supra) and Minu Kumari case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code. It appears that in the present case initially the case was tagged by order dated 24.02.2003 with WP(C) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were de-linked from the aforesaid writ petitions.

8. The writ petitions are finally disposed of with the following directions:

(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.

(2) It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.

(3) So far as non-grant of sanction aspect is concerned, it is for the government concerned to deal with the prayer. The government concerned would do well to deal with the matter within three months from the date of receipt of this order.

(4) We make it clear that we have not expressed any opinion on the merits of the case."

In Hari Singh vs. State of U.P.2, the Apex Court held as under:

"When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code.

In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd.) v. Union of India ((1996) 11 SCC 582). It was specifically observed that a writ petition in such cases is not to be entertained."

The above said proposition was also considered in Divine Retreat Centre vs. State of Kerala and others3 and held that wherever there is inaction on the part of the police 2 (2006) 5 SCC 733 3 (2008) 3 SCC 542

to act on the complaint and follow the procedure under Chapter XII of the Code, it is for the aggrieved party to file a complaint under Section 190 read with Section 200 Cr.P.C. before the Magistrate.

The grievance of the petitioners is that respondent Nos.1 to 4 are not taking any action pursuant to the complaint lodged by them particularly in registering a crime. In such a situation, the petitioners have got every right to invoke the powers under Section 190 read with Section 200 Cr.P.C., and file a complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to look into the complaint in compliance with the procedure contemplated in Chapter XV of the Code. Therefore, the course left open to the petitioners is to approach the concerned Magistrate by invoking the provisions of Chapter XV of the Code. The petitioners cannot straight away file the writ petition without invoking the provisions of Sections 190 and 200 Cr.P.C. In that view of the matter, this Court is of the opinion that the writ petition, as filed is not maintainable. Accordingly, the writ petition is dismissed.

Miscellaneous petitions, if any, shall also stand dismissed.

_____________________ P. KESHAVA RAO, J Date: 29.11.2018.

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