Telangana High Court
Ramky Infrastructure Limited vs State Telangana, And 6 Others on 21 April, 2020
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HONOURABLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION NO.24495 of 2019
ORDER:
The present writ petition is filed under Article 226 of the Constitution of India being aggrieved by the inaction of the respondents in registering an FIR on the basis of the complaint filed by the petitioner as arbitrary, illegal, unjustified, without jurisdiction and unconstitutional and consequently directing the official respondents to register first information report (in short FIR)on the basis of the complaint of the petitioner with consequential relief directing respondent No. 5 to 7 not to take or proceed with any coercive steps or proceedings relying on the purported ledger statement dated 14.04.2017 till the completion of investigation.
2. The brief facts which gives rise to the present petition are as under:
i) The petitioner is an infrastructure company involved in the business of construction and infrastructure projects in various sectors such as water and wastewater, transportation, irrigation, industrial construction, power transmission and distribution, buildings both residential commercial and retail property since the year 1994 and has a reputation of delivering quality services over a period of 25 2 years. It is claimed that the petitioner company had placed purchase orders on 5th respondent in the present writ petition for supply of construction equipment during the year 2012. It is also claimed that in respect of the said purchase orders placed by the petitioner company on the 5th respondent and the supplies affected by the said respondent the petitioner company cleared all the payments due under the purchase orders placed in respect of the goods supplied by the said respondent promptly and closed the account of the 5th respondent.
ii) It is claimed by the petitioner that some disputes arose over the quality of certain goods supplied by the 5th respondent which the petitioner did not accept and the last payment in respect of the admitted amounts due and payable was made by the petitioner on 27.05.2015.
iii) It is the case of the petitioner that the 5th respondent after more than three years from the date of last payment sent a demand notice dated 13.05.2019 under Section 8 of the Insolvency and Bankruptcy Code (in short IBC) claiming an amount of Rs. 2,07,03,712/- including interest up to 10.05.2019 as due and payable by the petitioner to the said respondent. It is also claimed that in response to the said notice, the petitioner company promptly sent its reply on 21.05.2019 categorically stating that the alleged claim of the 5th respondent was hopelessly barred by 3 limitation in the light of the various judicial pronouncements of the Hon'ble Supreme Court with regard to applicability of the provisions of the Limitation Act, 1963 to the proceedings under IBC.
iv) It is claimed that despite issue of reply by the petitioner, the 5th respondent filed company petition CP(IB) No. 586/9/HDB/2019 before the Hon'ble National Company Law Tribunal, Hyderabad Bench (in short NCLT) under section 9 of the code to initiate CIRP against the petitioner company.
v) It is the case of the petitioner that it is only after the 5th respondent filed proceedings before NCLT, the petitioner became aware of the alleged claim being made by the 5th respondent company by introducing a ledger statement dated 14.04.2017 purportedly issued by the petitioner company acknowledging the amount being claimed as due and payable by the petitioner to the 5th respondent company. It is claimed that the purported ledger statement dated 14.04.2017 with the alleged seal and signature of the authorised representative of the petitioner company does not belong to the petitioner company and was not at all issued by the petitioner company and the said ledger statement was clearly forged by the 5th respondent in order to circumvent the provisions of the Limitation Act, 1963, in a fraudulent 4 manner in order to maintain the company petition filed before the NCLT.
vi) It is further claimed that the petitioner company came to know about the existence of the purported ledger statement dated 14.04.2017 for the first time only after a copy of the company petition was served upon the petitioner by way of advance service by the 5th respondent. It is stated that upon service of the said company petition on the petitioner and while going through the same the petitioner company noticed the fraudulent and forged document in the form of ledger statement created by the 5th respondent.
Immediately, the petitioner company through its authorised representative sought to lodge a police complaint with the 4th respondent police authority with regard to the alleged act of forgery resorted to by the 5th respondent. As the said authorities refused to receive the complaint, the petitioner company lodged the same with the 4th respondent authority through email on 03.09.2019, which was duly acknowledged by the authorities by giving an ID number 1337.
vii) It is claimed that the petitioner company had to lodge the above complaint by an email as the 4th respondent did not accept the criminal complaint stating that the matter is sub judice and consequently requiring a direction from the Honourable NCLT to lodge an FIR and investigate further. 5
viii) It is also claimed that despite the petitioner company lodging a complaint with the 4th respondent by email dated 03.09.2019, the 4th respondent authority did not register the FIR based on the complaint made by the petitioner company, while the company petition filed by the 5th respondent is being proceeded with by the NCLT and hence, the petitioner is constrained to approach this Hon'ble court seeking a direction to the 4th respondent authority to register the complaint made by the petitioner company as the same discloses an offence of cognizable nature such as forgery, fraud and cheating committed by the 5th respondent. It is also claimed that the insistence of the 4th respondent to get a direction from Hon'ble NCLT to investigate is totally unwarranted.
3. Counter affidavit on behalf of 3rd respondent who is working as inspector of police of the 4th respondent police station is filed and placed on record. The case of the respondent as stated in the counter affidavit is that the petitioner had lodged a complaint dated 29.10.2019 with the 4th respondent wherein it is claimed that the petitioner is an infrastructure company had issued purchase orders for huge amount to the 5th respondent for supply of scaffolding materials, shattering material and other items. As there are certain amounts due and payable by the petitioner to the said respondent, the said respondent had filed an application 6 under Section 9 of IBC before the NCLT. It is stated that upon receipt of the complaint of the petitioner dated 29.10.2019, the 4th respondent had inquired into the matter and since it revealed that there was a civil dispute pending between the petitioner and the 5th respondent before the NCLT, as such the 4th respondent suggested the petitioner to approach the NCLT for redressal of his grievance. By the counter affidavit it is also stated that a notice dated 29.10.2019 was issued to the petitioner by post after making an entry in the general diary, informing the petitioner of the action taken on the complaint lodged by the petitioner. It is stated that thus the claim of the petitioner that the 3rd and 4th respondent authorities not registering an FIR on the basis of the complaint made by the petitioner as incorrect. It is also further stated that if the petitioner is aggrieved by the said notice issued by the 4th respondent as to the action taken on the complaint, the petitioner ought to have approached the competent court by filing a private complaint against the 5th respondent and others and ought not to have approached the Hon'ble High Court by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India.
4. Heard Sri. Avinash Desai, learned counsel for the petitioner and Sri. Malla Reddy, learned AGP (Home) for Respondent No. 1 to 4.
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5. As the main challenge in the present writ petition is to the inaction of the official respondent in not registering an FIR on the basis of the complaint made by the petitioner, this court felt that issue of notices to the respondents 5 to 7 unnecessary and took up the matter for hearing.
6. The substantial issue that needs consideration in the present writ petition is as to-
i) whether the action of the official respondents in not registering FIR on the basis of the complaint made by the petitioner can be said to be valid though such complaint discloses a cognizable offence of forgery being committed for filing a case into the court against the petitioner; and
ii) whether the High Court in exercise of jurisdiction under Article 226 of the Constitution of India can direct the official respondents to register an FIR on the basis of the complaint made by the petitioner.
7. Though elaborate arguments were advanced by both the learned counsel for the petitioner as well as on behalf of the official respondents as to whether the action of the 4th respondent in directing the petitioner to approach the NCLT for the redressal of the complaint is justified or not. It is submitted by the learned counsel to the petitioner that the 8 understanding of the respondent authority with regard to the application of the provisions of Section 195 of CRPC is clearly misplaced for the reason that the said provision would be applicable only if an offence is committed after a case is filed into the court. Since the case of the petitioner is that the 5th respondent had resorted to forgery in order to file a case against the petitioner, the said provision has no application. Learned counsel for the petitioner would submit that the provisions of Section 195 of CRPC would get attracted when an act of forgery takes place while the document is in the custody of the court i.e., custodia legis. It is also further submitted by the learned counsel for the petitioner that having regard to the provisions of Section 190 of CRPC, the application of section 195 of CRPC would arise only when a court takes cognizance of an offence. On the other hand, the petitioner having approached the respondent police authorities on noticing the act of forgery resorted to by the 5th respondent even before the filing of the case, the claim being made by the official respondent is untenable. The learned counsel would submit that since the complaint made by the petitioner discloses a cognizable offence, the respondent authorities are required to register an FIR. In support of the above submissions the learned counsel has relied on the following decisions :
i) Lalita Kumari V. Govt of UP and others1 ;
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(2014) 2 SCC 1
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ii) M. Narayandas V. State of Karnataka and others2 ;
iii) Iqbal Singh Marwah & another V. Meenakshi
Marwah3 ;
iv) Legal Remembrancer of Govt of W.B. V. Haridas
Mundra4 ;
v) Sachida Nand Singh & another V. State of Bihar5 ;
vi) Nirmaljit Singh Hoon V. State of W.B & another6 ;
8. Per contra the learned AGP would submit that since the matter is sub judice before the NCLT, and as it relates to dispute which is civil in nature the 4th respondent authority having regard to the provisions of the section 195 CRPC had directed the petitioner to approach the said court which in turn can lodge complaint for investigating into the alleged act of forgery in respect of a document filed into the court. The learned AGP would also further submit that even as per the judgment of the Hon'ble Supreme Court in the case of Lalitha Kumari (1 supra), the respondent police authorities are required to cause an enquiry and cannot register a case straightaway on the complaint when such complaint relates to commercial dispute. Since, the dispute of alleged act of forgery relates to commercial transaction between the petitioner and the unofficial respondent, the respondent authorities after conducting preliminary enquiry had issued notice to the petitioner with regard to the action taken on the 2 (2003) 11 SCC 251 3 (2005) 4 SCC 370 4 (1976) 1 SCC 555 5 (1998) 2 SCC 493 6 (1973) 3 SCC 753 10 complaint made, and informing the petitioner to approach the NCLT and if the petitioner is aggrieved by the said notice, it is open for the petitioner to approach appropriate forum to avail the remedies in accordance with law against the said action of the official respondent u/s. 340 of Cr. P.C. and the High Court cannot direct registration of an FIR based on the complaint so made under Article 226 of the Constitution of India. In support of the above submission, learned Government Pleader placed reliance on the judgement of the Hon'ble Supreme Court in the case of - Sakiri Vasu V. State of U.P.7
9. Having regard to the submissions made on either side, it is to be seen that the scope and application of Section 195 of Cr.P.C. is no longer resintegra. In the case of Iqbal Singh Marwah (Supra), the constitution bench of the Hon'ble Supreme Court has explained in detail the scope of Section 195(1)(b)(ii) of Cr.P.C. after taking note of divergent views expressed in the earlier judgments of the Supreme Court in the case of Surjit Singh V. Balbir Singh8 and Sachida Nand Singh V. State of Bihar (Supra). The Hon'ble Supreme Court on due consideration of the scheme of the Act, the statutory provision of Section 195 Cr.P.C and clauses (a), (b)(i) and b(ii) thereunder, in para 10 of the judgement observed thus - 7 (2008) 2 SCC 409 8 (1996) 3 SCC 533 11 This being the scheme of two provisions or clauses of Section 195, viz. , that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a court" occurring in clause (b)
(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in court, does not appear to be in tune with clauses (a) (i) and (b)
(i) and consequently with the scheme of Section 195 Cr.P.C. This indicates that clause (b) (ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court.
10. The Hon'ble Supreme Court in the above judgment while rejecting the submission made on behalf of the appellant by observing "The broad view of clause (b) (ii), as canvassed by learned counsel for the appellants, would render 12 the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded." further in para 25 and 26 of the judgement held as under -
25. An enlarged interpretation to Section 195 (1) (b) (ii) , whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of society at large.
26. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to 13 a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided.
In Statutory Interpretation............ Therefore, in order that a victim of a crime of forgery, namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive interpretation on clause
(b)(ii).
11. From a reading of the above, it would be clear that if an act of forgery is resorted to and using such forged document a proceeding is laid in any court, the provisions of Section 195 (1)(b)(ii) of Cr. P.C., does not prohibit the victim from filing a complaint either with the police or before the magistrate under Section 156(3) of Cr.P.C.
12. Though in the facts of the present case, the petitioner has approached the respondent police authorities by lodging a complaint by e-mail on 03.09.2019 and thereafter on 29.10.2019, the respondent authorities did not register FIR on the basis of the complaint and on the other hand, directed the petitioner to approach NCLT since the matter was pending 14 before such tribunal. Though in the notice issued to the petitioner with regard to the action taken on the complaint, the respondent authorities did not specifically refer to the provisions of Section 195 of the Cr.P.C., the purport of the said communication can clearly be inferred, whereby the respondent authorities wanted a complaint to be made by the concerned court under Section 340 of Cr.P.C., since, the document is already filed into the court. The said communication as issued by the respondent police authorities is clearly not in line with the law as laid down by the Supreme Court as detailed herein above.
13. The learned Government pleader sought to be urge, that the respondent authorities after causing preliminary inquiry into the complaint made by the petitioner had issued the notice and the said action of the authorities is in accordance with the judgement of the Hon'ble Supreme Court in Lalita Kumari case (Supra), it is to be seen that the Hon'ble Supreme Court in the above case did not direct the police authorities not to register an FIR under Section 154 Cr.P.C. On the other hand, the Supreme Court in para 120 of the judgement categorically held that if the information discloses commission of a cognizable offence, registration of FIR is mandatory. The only leeway granted by the Hon'ble Supreme Court is with regard to certain matters, the authorities were permitted to cause preliminary inquiry only to ascertain 15 whether the information reveals any cognizable offence or not, but not to verify the veracity or otherwise of the information received.
14. Further, a perusal of the notice dated 29.10.2019 as issued by the respondent police to the petitioner informing the action taken on the complaint made, though it is claimed is after preliminary inquiry, however does not record any reasons for the said authority coming to the conclusion that the complaint so made does not disclose commission of any cognizable offence. The reason as stated in the said notice is that the preliminary inquiry revealed there is a civil dispute pending between parties before the NCLT, as such the party is directed to approach the NCLT for redressal. The reason as stated in the notice can not be said to be valid and justiciable, since the main grievance of the petitioner in the complaint made is relating to the sign and stamp affixed in its name on the Ledger A/c statement being forged one and having come from the custody of the 5th respondent, and the complaint made clearly discloses a cognizable offence falling under Section 463 of Cr.P.C. having been committed.
15. The other submission of the learned counsel for the petitioner is that, having regard to the language used in Section 195 of Cr.P.C., the restriction of an offence committed not being taken cognizance of is applicable only to the courts and does not in any way circumscribe the power of police to 16 investigate into the complaint and thus the respondent police authorities could not have shirked their responsibility to register an FIR on the basis of the complaint made and take up investigation in the matter.
16. The provision of Section 195 of Cr.P.C. deals with prosecution for contempt of lawful authority, for offences against public justice and for offences relating to documents given in evidence. Further, under the scheme of the Code, the police authorities are conferred with the power of investigation and such power cannot be equated with the power to take cognizance and such power being vested only with the courts. This would be clear from the provisions of Section 190 and 195. In so far as Section 195(1) of the Code is concerned, it puts a bar on court taking cognizance of offences specified in sub clause (a) and (b) thereunder, except on the complaint of the authority specified therein. The term "cognizance" has not been defined in the code, but however has been explained in the case of Ajit Kumar Palit v. State of West Bengal9, this Court observed :-
"The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means become aware of and when used with reference to a court or judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor (AIR 1943 Pat. 245) by the learned Judges of the Patna High Court in a passage 9 1963 (Supp1) SCR 953 17 quoted with approval by this Court in R. R. Chari v. State of Uttar Pradesh (1951 SCR 312, 320) that the word, "cognizance" was used in the Code to indicate the point when the Magistrate or judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense."
17. Further, it is rightly contended by the Learned Counsel for the petitioner by placing reliance on the decision of the Supreme Court in the case M. Narayandas (Supra) on the aspect of power of police to investigate into a cognizable offence being circumscribed by Section 195 of the code, wherein it was observed that -
"8. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh reported in 1998 (2) SCC 391. In this case it has been that as follows :
"2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468, I. P. C. by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii), Cr. P. C. prohibited entertainment of and investigation into the same by 18 the police. From a plain reading of Section 195, Cr. P. C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1), Cr. P. C; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceedings in Court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195, Cr. P. C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b), Cr. P. C., but nothing therein deters the Court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340, Cr. P. C. The judgment of this Court in Gopala-krishna Menon v. Raja Reddy ((1983) 4 SCC 240 : 1983 SCC (Cri) 822 : AIR 1983 SC 1053) on 19 which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil Court and hence it was held that the Court could not take cognizance on such a complaint in view of Section 195, Cr. P. C."
Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340, Criminal Procedure Code is followed."
18. Having regard to the above settled position of law, it is clear that the restriction placed under Section 195 of the code is applicable only when a court is required to take notice judicially of the act of offence complained and the investigation thereinto by the police authorities. Thus, considered from any angle, this court is of the view that the 20 respondent police authorities ought to have registered an FIR on the basis of the complaint made by the petitioner and take up investigation in the matter as specified under Section 156 of the Code, instead of issuing notice claiming that a civil dispute is pending before NCLT and directing the petitioner to approach NCLT for redressal as noted herein above.
19. Having come to the above conclusion, this takes me to the other question, i.e., whether the High Court in exercise of jurisdiction under Article 226 of the Constitution of India, can direct the registration of FIR?
20. It is submitted by the learned AGP, that the respondent police authorities having issued a notice to the petitioner on 29.10.2019 informing the action taken on the complaint made after making an entry in the General Diary, it is always open for the petitioner to approach the competent Magistrate court by filing a private complaint under Section 200 of the Code, if he is aggrieved by the said notice and get the complaint referred to the police authorities for investigation and filing a report before the concerned Magistrate under Section 156 of Code. Further, he would also submit that this court cannot direct registration of an FIR in view of the settled position of law as explained in the case of Sakiri Vasu (Supra).
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21. In the case of Lalita Kumari (Supra), the Constitution Bench of the Hon'ble Supreme Court, while holding that if the complaint / information discloses commission of cognizable offence, the police authorities have no option, but to register an FIR forthwith. Further in the said decision it was observed thus -
"104. Burking of crime leads to dilution of the rule of law in the short run; also has a very negative impact on the rule of law in the long run since people stop having respect for the rule of law. Thus, non-registration of such large number of FIRs leads to a definite lawlessness in the society."
22. However, in the facts of the present case, based on the complaint made, though the respondent police authorities did not register an FIR, and take up investigation, but issued notice informing the petitioner, that preliminary inquiry revealed the complaint involves a civil dispute. If the petitioner is aggrieved by the said notice issued, the code itself provides for approaching the higher authority as specified in Section 154(3) of the Code. It is not shown to this court, whether the petitioner had approached the said authority as contemplated in Section 154(3) of the code upon the 3rd respondent police authority issuing the notice. On the other hand the petitioner has approached this court by filing present writ petition under Article 226 of the 22 Constitution of India on 06.11.2019, to declare the inaction of respondent authorities in registering the FIR based on the complaint as arbitrary, illegal and unjustified.
23. In the case of Sakiri Vasu (Supra), the Hon'ble Supreme court while dealing with the issue relating to invoking the jurisdiction of this court under Article 226 of the Constitution of India, for non registration of FIRs observed that -
"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 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).
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 23 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?"
In the above decision it was further observed thus -
"It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere."
24. Having regard to the position of law as enunciated by the Hon'ble Supreme Court, and having regard to the fact that a notice has been issued by the 3rd respondent, to the petitioner informing the action taken on the complaint, which may not be to the liking of petitioner, that by itself would not entail the petitioner approaching this court under Article 226 of the Constitution of India. Further, in a recent judgement rendered on 20.03.2020 in the case of M. Subramaniam and Another V. S. Janaki and Another10, the Hon'ble Supreme Court, while setting aside the order of the Madurai Bench of the Madras High Court, directing the registration of FIR in a 10 Criminal Appeal No. 102 of 2011 dated 20.03.2020 24 writ petition filed, was pleased to refer to another judgement of the Supreme Court, wherein the judgment of Sakiri Vasu was followed. The relevant portion of the above said judgement rendered reads as under :
"6. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage and Others (2016) 6 SCC 277, in which it is observed.
"2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have 25 been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside."
25. Though this court having come to the conclusion that the respondent police authorities ought to have registered an FIR on the basis of the complaint made by the petitioner, this court cannot in a writ petition direct the respondent police authorities to register an FIR and investigate into the matter being complained of, in view of the authoritative pronouncements of the Hon'ble Supreme Court in the case of 26 Sakiri Vasu (Supra), followed in Sudhir Bhaskarrao Tambe case and further as reiterated in the case M. Subramaniam and Another (Supra), which binds this court under Article 141 of the Constitution of India. Thus, the main relief sought for in the present writ petition of "directing the respondent official to register an FIR on the basis of the complaint"
cannot be granted and since a notice has been issued to the petitioner informing the action taken on the basis of the complaint lodged, it is left open for the petitioner to approach the concerned Magistrate court having jurisdiction to avail remedies in accordance with law.
26. Subject to above observation, the writ petition is disposed off. No order as to costs.
27. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
_____________________ T. VINOD KUMAR, J Date: 21.04.2020