Gujarat High Court
Jayeshbhai Manilal Chauhan & vs State Of Gujarat & on 10 January, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
JAYESHBHAI MANILAL CHAUHANV/SSTATE OF GUJARAT R/SCR.A/55/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 55 of 2013 ============================================================== JAYESHBHAI MANILAL CHAUHAN & 1....Applicant(s) Versus STATE OF GUJARAT & 4....Respondent(s) ============================================================== Appearance: MR SHAKEEL A QURESHI, ADVOCATE for the Applicant(s) No. 1 - 2 MR HL JANI, APP for the Respondent(s) No. 1 ============================================================== CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 10/01/2013 ORAL ORDER
1. Heard Mr. Qureshi, learned advocate for petitioners and Mr. Jani, learned APP.
2. In present petition, the petitioners have prayed, inter alia, that:
11(B) Allow this petition and issue appropriate writ, order or direction to respondent no.2 Commissioner of Police to consider and decide the representations dated 27.12.2012 and 30.12.2012 (ANNEXURE C ) addressed by petitioner no.1, forthwith and to take action against respondent no.3-PSI and be pleased to direct the respondent Police authorities to initiate action against respondents no.4 and 5 including registration of FIR against them, their agents and servants pursuant the representations dated 27.12.2012 and 30.12.2012 (ANNEXURE C ) addressed by petitioner no.1.
3. According to the petitioners, the complaint submitted by the petitioners is not registered and any action/investigation is not commenced, despite their requests. The petitioners also want that their representation may be decided.
4. The learned counsel for the petitioners submitted that the complaint sought to be lodged is not registered as FIR and investigation is not commenced. The learned counsel for petitioner also alleged that the Respondent No.3 is, according to petitioners belief, helping the respondent Nos. 4 and 5. It is alleged that the said complaint and allegations are not investigated by the Police. The learned counsel therefore asked for direction to the Police to register FIR and to investigate the allegations.
4.1. One fact which has emerged from the record is that before preferring present petition the petitioners did not approach the Court of concerned learned Magistrate and did not submit/file any complaint before the learned Magistrate as observed by the Hon ble Apex Court in cases of Sakiri Vasu v. State of U.P. [2008 (2) G.L.H. 269], Aleque Padamsee v. Union of India [(2007) 6 SCC 171] and in view of order dated 14.07.2008 passed by the Hon ble Apex Court in Writ Petition (Crl) No.68 of 2008.
5. The aforesaid factual aspects make it clear that before filing present petition, though the petitioners sought to file complaint about the alleged offence before the respondents, they did not approach the Magistrate and did not file any complaint before the concerned Magistrate.
6. In this context it is relevant to refer to the observations by the Apex Court in the above mentioned decisions. In paragraphs 6, 7 and 8 in the decision in case of Aleque Padamsee vs. Union of India, reported in (2007) 6 SCC 171, the Hon ble Apex Court has observed that:
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 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, SCC p. 583, para 4. 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, Minu Kumari v. State of Bihar and Hari Singh v. State of U.P.
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 and reiterated in Gangadhar case 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, Gangadhar case, Hari Singh case, Minu Kumari case and Ramesh Kumari case, we find that the view expressed in Ramesh Kumari case related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari case 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, Gangadhar case, Minu Kumari case and Hari Singh case. The view expressed in Ramesh Kumari case was reiterated in Lallan Chaudhary v. State of Bihar. 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, Gangadhar case, Hari Singh case and Minu Kumari case. The correct position in 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. 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 24-2-2003 with WP © No.530 of 2002 and WP © No.221 of 2002. Subsequently, these writ petitions were delinked 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.
7. Thereafter, in paragraphs 24 to 27 in the decision in case of Sakiri Vasu vs. State of U.P., reported in 2008 (2) GLH 269, the Hon ble Apex Court has observed that:
24.
In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. To order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.
25. 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 under Section 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 under Section 154(3) and Section 36Cr.P.C. Before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. Or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. Instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (through he cannot investigate himself).The High Court should discourage the practice of filing a writ petition or petition under Section 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. For this grievance, the remedy lies under Sections 36 and 154(3)before the concerned police officers, and if that is of no avail,under Section 156(3) Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.
8. Subsequently, in the order dated 14.7.2008 passed by the Hon ble Apex Court in Writ Petition (Crl) No.68 of 2008, the Hon ble Apex Court has passed certain directions. In light of the directions, the learned Magistrate is required to pass appropriate directions and/or take necessary steps in consonance with the said directions. The said directions read thus:
In view of the above, we feel that it is high time to give directions to Governments of all the States and Union Territories besides their Director Generals of Police/Commissioners of Police as the case may be to the effect that if steps are not taken for registration of F.I.Rs immediately and copies thereof are not made over to the complainants, they may move the concerned Magistrates by filing complaint petitions to give direction to the police to register case immediately upon receipt/production of copy of the orders and makeover copy of the F.I.Rs to the complainants, within twenty four hours of receipt/production of copy of such orders. It may further give direction to take immediate steps for apprehending the accused persons and recovery of kidnapped/abducted persons and properties which were subject matter of theft or dacoity. In case F.I.Rs are not registered within the aforementioned time, and/or aforementioned steps are not taken by the police, the concerned Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them inasmuch as the Disciplinary Authority would be quite justified in initiating departmental proceeding and suspending them in contemplation of the same.
Keeping in mind these facts, we are of the view that notices should be issued to Government of all the States and Union Territories besides Director Generals of Police/Commissioners of Police as the case may be.
9. In view of the aforesaid observations and directions by the Hon ble Apex Court, the learned counsel for petitioner submitted that with a view to taking out appropriate application, present petition is not pressed at this stage.
10. In that view of the matter, present petition is not entertained and is disposed as not pressed at this stage and petitioner may make appropriate application before the Court of concerned learned Magistrate.
11. In aforesaid view of the matter, present petition is disposed of with the observation that if and when the petitioner submits/files any complaint before the learned concerned Magistrate, the learned Magistrate will take the same into consideration in accordance with the provisions of the Code and in accordance with law and in light of the above quoted observations and directions by the Hon ble Apex Court.
With the aforesaid observation and clarification, petition is disposed of as not pressed/withdrawn at this stage.
(K.M.THAKER, J.) Jani Page 7 of 7