Andhra Pradesh High Court - Amravati
A.Venkata Narasu Babu vs The State Of Andhra Pradesh on 8 September, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.7346 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, seeking the following relief:
"To issue Writ of Mandamus, declaring the action of the Respondent Nos.3 to 6 in not registering any Crime/FIR against the Respondents Nos.10 to 13 and also declaring the action of the Respondents Nos.7 to 9 in not taking any legal action against the Respondents Nos.10 to 13 regarding the trespass illegal mining of mineral and transportation of the same from the land in Sy.No.275 of Gondipalle Village, Vemula Mandal, Kadapa District and violating the order of the Supreme Court order dated 08.05.2017 as illegal, arbitrary and unconstitutional and consequently direct the Respondent Nos.3 to 6 to register a Crime/FIR against the Respondent Nos.10 to 13 and also direct the Respondent Nos. 7 to 9 to take action as per law against the Respondent Nos. 10 to 13 from doing illegal mining activity and transportation violating the order of the Supreme Court and also direct the police department/R-3 to R-6 to take undertakings from the Respondent Nos.10 and 13 from not interfering into the mining operations that would be conducted by the petitioners in Sy.No.275 of Gondipalle Village, Vemula Mandal Kadapa District in an extent of Ac.705-43 acres and direct the Respondent No.12 to follow the order of the Supreme Court.
It is the case of the petitioners that, Respondent No.12 herein has filed suit O.S.No.128 of 2014 on the file of I Additional District Judge, Kadapa, for grant of injunction restraining Defendant No.6/Akumalla Rajagopal his men, agents, etc., claiming right through him from entering into the plaint schedule mine in any capacity and thereby not to interfere with the smooth management of the mine in any manner. Respondent No.12 and others also filed an application I.A.No.365 of 2016 in O.S.No.128 of 2014 under Order XXXIX Rule 1 r/w Section 151 of C.P.C for grant of interim injunction restraining Akula Rajagopal/Respondent No.6 therein and his men, obtained interim order on 07.04.2016. The same was MSM,J WP No.7346 of 2020 2 assailed in CMA Nos.407 and 415 of 2016 and later preferred CRP No.2319 of 2016 on the file of this Court, questioning the order in I.A.No.365 of 2016 in O.S.No.128 of 2014 passed by the IV Additional District Judge, Kadapa. This Court vide common order in CRP No.2319 of 2016 and CMA Nos.407 and 415 of 2016 set-aside the interim injunction granted by the civil court in I.A.No.365 of 2016 dated 07.04.2016. The unsuccessful plaintiff has approached the Apex Court in S.L.P (C) Nos.34404-34406/2016, where the Apex Court by order dated 08.05.2017 passed an order as follows:
"Issue notice.
The petitioner, Annaiahvari Anjaneyulu @ Anja, and Respondent No.3, Annaiahvari Shyam Pawan, and Respondent No.7, Annaiahvari Venkata Narasu @ Babu are appointed as joint receivers. They shall file fortnightly accounts before the Registrar (Judicial) of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, who, in turn, shall send it to the Registrar (Judicial) of this Court."
The Government of Andhra Pradesh issued demand notice for payment of dead rent of a sum of Rs.3,24,96,241/- on 23.03.2018 in ten instalments and Respondent No.2 did not cooperate with these petitioners to operate the mine. The petitioners addressed a letter dated 26.04.2018 to Director of Mines and Geology/Respondent No.7 and Joint Director of mines and Geology, Ibrahimpatnam, narrating the facts of the case, expressing their readiness to cooperate with Respondent No.12 to operate the mine. The co-owners of petitioners submitted another letter dated 31.07.2018 to the Government to permit the petitioners to pay the dues in 24 equal instalments, but the Government granted only 20 equal instalments for payment of the dead rent of Rs.3,24,96,241/-.
MSM,J WP No.7346 of 2020 3 While the matter stood thus, the petitioners got issued legal notice dated 27.11.2018 to Respondent Nos. 10 and 11 through their Advocate, demanding to stop their illegal interference into the mining activity, but, the Respondent Nos. 10 and 11 did not care and continued their interference in the mining activity and stealing the valuable mineral belonging to the Government for the last six years. The petitioners then reported to the authorities and addressed a letter dated 15.02.2020. One such complaint is given to Respondent No.9 to come to the rescue of the petitioner annexing Supreme Court order, but no action was taken so far. The petitioner also lodged a police complaint on 16.02.2020 before Respondent No.6 along with copy of the order of the Apex Court, but no action was taken by the Respondent No.6. On the other hand, advised the petitioner to approach the local leaders while expressing their helplessness. Again the petitioners approached the District Collector, Kadapa on 02.032020 and gave a complaint in Spandana Programme and obtained an acknowledgment from the Collector, but no action has been taken so far. Thus, the inaction of Respondent Nos.3 to 6 to take appropriate action on the petitioners complaint is a serious violation of public duty, being the public officers.
It is further contended that, in view of the law declared by the Constitutional Bench judgment of the Supreme Court in Lalita Kumari v. State of Uttar Pradesh1 and various judgments of this Courts, Respondent Nos. 3 to 6 are bound to register a crime and issue F.I.R, as the allegations made in the complaint discloses commission of cognizable offence. Instead of acting upon the complaint, taking action against Respondent Nos.10 to 13 at the 1 AIR 2012 SC 1515 MSM,J WP No.7346 of 2020 4 behest of political leaders, no action has been taken and thus, they violated the fundamental rights of these petitioners guaranteed under Articles 19 and 21 of the Constitution of India and the action of Respondent Nos. 3 to 6 is arbitrary, illegal and requested to issue a direction as stated supra.
Learned counsel for the respondents though received material papers, no counter is filed, but advanced arguments, which will be referred at appropriate stage.
During hearing, learned counsel for the petitioners Sri S.S. Bhatt, vehemently contended that, judgment in Lalita Kumari v. State of Uttar Pradesh (referred supra) is delivered by the Constitutional Bench of the Supreme Court and it is binding on this Court and requested this Court to direct the police officials to register crime when the report discloses commission of cognizable offence. Learned counsel for the petitioners further contended that, later judgment of the Apex Court in M. Subramaniam and another v. S. Janaki2, is not a binding precedent and it is per incuriam. Learned counsel for the petitioners also drawn attention of this Court to several judgments of the Apex Court in N. Parameswaran Unni v. G. Kannan3, State of Bihar v. Kalika Kuer Alias Kalika Singh4 and judgment of learned single Judge of High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh in Jalleplli Rama Koteswara Rao v. State of Andhra Pradesh5, Mohammed Ahmed Ali, Hyderabad v. Prl. Secretary, Home 2 CDJ 2020 SC 401 3 AIR 2017 SC 1681 4 (2003) 5 Supreme Court Cases 448 5 (2016) 3 ALT 797 MSM,J WP No.7346 of 2020 5 Department, Hyderabad6, Mohd. Shahabuddin v. State of Telangana7, Kasse Shantha Kumari, WG District v. Prl. Secretary, Home Department, Hyderabad8, Nalabothu Punniaha v. State of Andhra Pradesh9, A. Bharathi v. State of Telangana10, K. Veera Raghava Reddy v. State of Telangana11, Ajijaz Ahmed v. Union of India12, Kajgam Veeresham v. State of Telangana13, G. Nagamani v. State of Andhra Pradesh14, Dr. Chegudi Ashok Babu v. Karunakar Sugguna15, Sri Chegireddy Venkata Reddy v. Government of Andhra Pradesh16, judgment of Bombay High Court (Nagpur Bench) in Satish Mahadeorao Uke v. Hon'ble The Chief Justice, High Court of Judicature at Bombay17, on the strength of those judgments, learned counsel for the petitioner submitted that, when once this Court is following the judgment in Lalita Kumari v. State of Uttar Pradesh (referred supra) and passed various orders, now the relief cannot be denied to these petitioners at this stage in the present writ petition, since the judgments of the Apex Court and this Court are binding on this Court and requested to issue a direction as stated above.
Whereas, learned Government Pleader for Home contended that, in all the judgments referred above, the Apex Court and this Court issued directions to register crime as the complaints were disclosing commission of a cognizable offence. In any of the 6 W.P.No.3807 of 2016 dated 09.02.2016 7 (2016) 1 ALD (Cri) 532 8 W.P.No.22459 of 2016 dated 12.07.2016 9 (2016) 2 ALD (Cri) 974 10 (2017) 1 ALT 149 11 (2016) 6 ALT 803 (DB) 12 (2018) 4 ALD 661 (D.B) 13 W.P.No.14246 of 2017 dated 03.01.2019 14 (2019) 5 ALD 407 15 (2019) 6 ALD 215 (D.B) 16 W.P.No.8384 of 2020 & batch dated 30.07.2020 17 2017 (6) Mhj.L.J 201 MSM,J WP No.7346 of 2020 6 judgments, this Court and Apex Court did not consider the maintainability of writ petition when alternative remedy is available under Cr.P.C. But, in M. Subramaniam and another v. S. Janaki (referred supra), the Full Bench of Apex Court considered availability of alternative statutory remedy and that when the petitioner failed to exhaust the same, this Court cannot issue a direction exercising power of judicial review under Article 226 of the Constitution of India and dismiss the writ petition.
No doubt, civil disputes are pending both in IV Additional District Judge, Kadapa in O.S.No.128 of 2014 and S.L.P (C) Nos.34404-34406/2016 before the Apex Court. Both, Respondent Nos. 10 to 13 and these petitioners are claiming right in the mining lease, whereas, Respondent Nos. 10 to 13 are allegedly stealing valuable mineral from the mining area. Therefore, the act of Respondent Nos. 10 to 13 would constitute a cognizable offence of criminal trespass and theft, but the police are not taking any action against the respondents, despite lodging a report dated 16.02.2020 and Respondent Nos. 3 to 6 also did not take any action on the report submitted to them to take appropriate action.
The law declared by the Apex Court in Lalita Kumari v. State of Uttar Pradesh (referred supra) and this Court in the judgments referred above is not in dispute and from the law declared by the Apex Court and this Court in various judgments referred above, it is obvious that the power of the police is to register a crime and issue F.I.R, when the complaint lodged with the police discloses commission of a cognizable offence. Here also, the complaint allegedly lodged by this petitioner with the police discloses MSM,J WP No.7346 of 2020 7 commission of a cognizable offence. Despite it, Respondent Nos. 3 to 6 did not take any action and such inaction would undoubtedly amount to their failure to discharge public duty, being the public officers.
The duty of the police is to control the law and order while maintaining good relationship with the society at large. Forgetting their official duty merely giving importance to the persons belonging to political party in power, not registering the crimes based on the reports lodged by third parties/persons other than the members of the political party in power is objectionable. Despite issuing various directions by the Apex Court, the police are not taking any action perhaps due to their patronage with local politicians or with the authorities for the reasons best known to them. Such patronage of police with the culprits or any other local political leaders or law violators denounces or demean the prestige of very institution of the police. They may survive for some time in the stations they are interested due to political patronage, but they are forgetting that they are permanent employees till their retirement in the State and the political parties may come into power and lose power after some time. If the police continuing the practice of adaptability to the demands of the political party in power, it will ruin the police system itself besides losing public faith. Therefore, it is the abundant duty of the police to act upon such complaint when it is disclosing commission of cognizable offence, irrespective of status of the person involved in those incidents. But, here, Respondent Nos. 3 to 6 for obvious reasons are maintaining silence, though complaints were lodged disclosing commission of cognizable offence by Respondent MSM,J WP No.7346 of 2020 8 Nos. 10 to 13. Such inaction on the part of Respondent Nos. 3 to 6 is highly depreciable.
In all the judgments referred above, the Apex Court directed the concerned Station House Officer to register crime, issue F.I.R and start investigation if the complaint lodged with the police discloses commission of a cognizable offence(s). Instead of following the directions of the Apex Court in Lalita Kumari v. State of Uttar Pradesh (referred supra), the police are defending themselves, taking advantage of the judgment of the Apex Court on maintainability of the writ petition when alternative remedy is available. Such defence raised by the learned Government Pleader for Home is not fair in all respects.
Though, the Apex Court in Lalita Kumari v. State of Uttar Pradesh (referred supra) made it clear that the Station House Officer is under legal obligation to register crime when the complaint disclosing commission of a cognizable offence and did not discuss anything about maintainability of the writ petition under Article 226 of the Constitution of India. In fact, it was not the question before the Apex Court. Similarly, in other judgments, no such question was raised and decided by any of the Courts as to the maintainability of the writ petition when alternative remedy is available. However, later, in M. Subramaniam and another v. S. Janaki (referred above), the Apex Court elaborately dealt with maintainability of the writ petition when alternative remedy is available by filing private complaint.
The Full Bench of the Apex Court in Sakiri Vasu v. State of Uttar Pradesh18 extracted the procedure under Sections 154(3) and 156(3) Cr.P.C and held that, "it is well settled that when a power is 18 2008 (2) SCC 409 MSM,J WP No.7346 of 2020 9 given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.".
The Apex Court relied on the judgment of the Apex Court in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others19 and extracted the principle laid down therein, holding that, writ petition is not maintainable, since the petitioner is entitled to follow the procedure under Section 156(3) Cr.P.C, without expressing any opinion as to merits of the case.
The jurisdiction of this Court under Article 226 of the Constitution of India is wide, but such discretionary jurisdiction has to be exercised sparingly.
In the recent judgment Genpact India Private Limited v. Deputy Commissioner of Income Tax and another20 the Division Bench of the Apex Court held that, when a statutory remedy is available under the statute, the Court would not normally entertain the writ petition against assessment order. The Apex Court finally concluded that, if the submission is accepted, every time the dispute will be required to be taken up in proceedings such as a petition under Article 226 of the Constitution, which normally would not be 19 2016 (6) SCC 277 20 (2019) 311 CTR (SC) 737 MSM,J WP No.7346 of 2020 10 entertained in case of any disputed questions of fact or concerning factual aspects of the matter. The assessee may thus, not only lose a remedy of having the matter considered on factual facets of the matter but would also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the Act.
In Commissioner of Income Tax and others v. Chhabil Dass Agarwal21 the Apex Court held as follows:
"Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh22, Titaghur Paper Mills Co. Ltd. v. State of Orissa23, Harbanslal Sahnia v. Indian Oil Corpn. Ltd24 and State of H.P. v. Gujarat Ambuja Cement Ltd25) In view of the law declared by the Apex Court, when a statutory remedy is available against the inaction under challenge in the writ petition, the Court shall not normally entertain petition under Article 226 of the Constitution of India which is purely discretionary in nature.
The Apex Court time and again laid down certain principles as to under what circumstances the Court can exercise its power of judicial review under Article 226 of the Constitution of India and that 21 (2014) 1 SCC 603 22 AIR 1958 SC 86 23 (1983) 2 SCC 433 24 (2003) 2 SCC 107 25 (2005) 6 SCC 499 MSM,J WP No.7346 of 2020 11 there is no absolute bar to entertain such writ petitions, more particularly, when the authorities passed an order in violation of principles of natural justice or without considering any law or without affording any opportunities to the parties.
In Maharashtra Chess Association v. Union of India26 the Division Bench of Apex Court was called upon to decide whether the existence of an alternate remedy would create a bar on High Court to exercise writ jurisdiction, it held, "The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court." Explaining that the court added that courts had themselves imposed certain constraints on the exercise of their writ jurisdiction to ensure that the jurisdiction did not become an appellate mechanism for all disputes within a High Court's territorial jurisdiction, the bench said, "The intention behind this self-imposed rule is clear. If High Courts were to exercise their writ jurisdiction so widely as to regularly override statutory appellate procedures, they would themselves become inundated with a vast number of cases to the detriment of the litigants in those cases." This would also defeat the legislature's intention in enacting statutory appeal mechanisms to ensure the speedy disposal of cases. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors.
26
Civil Appeal No. 5654 of 2019 @Special Leave Petition (C) No 29040 of 2018 dated 29.07.2019 MSM,J WP No.7346 of 2020 12 In M/s.HCL Infosystems Limited v. State of Rajasthan27, Division Bench of Jaipur considered the Doctrine of exhaustion of remedies which prevents a litigant from seeking remedy or claims or remedies exhausted observed as follows:
"Since remedy of appeals are provided to the assessee under the VAT Act, which are equally efficacious and speedy remedy, especially when after 2003, there is no bar for the High Court to grant appropriate interim order of stay in sales tax revision. In fact, in one of the cases, the Tax Board has decided the matter against the revenue not only on the question of penalty and interest, but also on the question of tax and subsequently the Board has itself made reference to its Larger Bench on the issues raised in these appeals, which is pending. It therefore cannot be said that alternate remedy available under the Act is not effective and efficacious."
In view of the law declared by the Apex Court and other Courts referred supra, it is clear that an alternative remedy is available under the provisions of Cr.P.C to file a complaint, this Court cannot issue any direction by way of Mandamus.
Chapter XII of Code of Criminal Procedure, 1973, deals with information to the police and their powers to investigate. According to Sub-section (1) of Section 154 Cr.P.C, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Sub-section obligates the Station House Officer to furnish copy of the 27 W.P.No.491 of 2017 dated 17.09.2019 MSM,J WP No.7346 of 2020 13 information as recorded under sub-section (1) to be given forthwith, free of cost to the informant.
According to Sub-section (3) of Section 154 Cr.P.C, Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
In the present case, the petitioner submitted a written report on 16.02.2020 to Respondent Nos. 3 to 6, but not by registered post with acknowledgment due, marking a copy to the Superintendent of Police, as prescribed under Sub-section (3) of Section 154 Cr.P.C. If, for any reason, the police did not act on the complaint lodged by the complainant, disclosing commission of cognizable offence, the procedure prescribed under Section 156 Cr.P.C is to be followed by such police officer to investigate into cognizable offence.
Section 156 Cr.P.C deals with power of police officers to investigate cognizable case. Sub-section (1) stipulates that, any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
MSM,J WP No.7346 of 2020 14 Sub-section (2) further says that, no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Thus, a special protection is provided to the Investigating Officer under Sub-section (2) of Section 156 Cr.P.C, while conducting investigation in a cognizable offence. At the same time, Sub-section (3) authorizes the Magistrate to order for investigation when the Court received information under Section 190 Cr.P.C. Section 190 Cr.P.C deals with cognizance of offences by Magistrates.
Section 200 Cr.P.C deals with examination of complainant and the procedure to be followed. According to Section 200 Cr.P.C, a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
a. If a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or b. if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them. Thus, two options are available to these petitioners. One is to follow the procedure under Section 154(3) Cr.P.C or alternatively file a private complaint before the jurisdictional Magistrate by following MSM,J WP No.7346 of 2020 15 the procedure under Cr.P.C. But, this procedure was not followed by these petitioners strictly, but complaining that Respondent Nos.3 to 6 are not adhering to the directions issued by the Apex Court in Lalita Kumari v. State of Uttar Pradesh (referred supra). When the petitioners failed to adhere to the procedure contemplated under Cr.P.C, they cannot insist this Court to exercise discretionary jurisdiction under Article 226 of the Constitution of India on the ground that the public officers failed to discharge their public duty, more so, when an alternative remedy is available to the petitioners to file a private complaint. On the other hand, the Apex Court in Lalita Kumari v. State of Uttar Pradesh (referred supra) made it clear that in the event of failure to comply with the directions issued by the Apex Court, action must be taken against erring officers who do not register F.I.R if information received by them discloses a cognizable offences vide Paragraph No.111(iv) of the judgment. Therefore, the petitioners are at liberty to take appropriate action in terms of the judgment of the Apex Court in Lalita Kumari v. State of Uttar Pradesh (referred supra), by taking action against the concerned erring police officials after strict adherence to the procedure prescribed under Section 154(3) Cr.P.C, but the law declared in Lalita Kumari v. State of Uttar Pradesh (referred supra) did not give rise to a cause of action to approach the High Court, invoking extraordinary jurisdiction under Article 226 of the Constitution of India. Therefore, I am of the firm view that writ petition is not maintainable and consequently, the writ petition is liable to be dismissed. However, it is left open to these petitioners to comply with the mandatory requirement under Section 154(3) Cr.P.C or in the MSM,J WP No.7346 of 2020 16 first alternative, file a private complaint or as a second alternative, to take steps for appropriate action against police officer(s) who refused to register crime, though complaint discloses commission of cognizable offence(s) in terms of Paragraph 111(iv) of judgment of the Apex Court in Lalita Kumari v. State of Uttar Pradesh (referred supra), if advised, in terms of Paragraph No.4 of the judgment of the Apex Court in Lalita Kumari v. State of Uttar Pradesh (referred supra).
With the above liberty, writ petition is dismissed. No costs. Consequently, miscellaneous petitions pending, if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:08.09.2020 sp