Gujarat High Court
Pradeep S/O Nirannarnath Sharma vs Jm Bharwad Or His Successor In Office & 3 on 1 April, 2014
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/SCR.A/1160/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 1160 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PRADEEP S/O NIRANNARNATH SHARMA....Applicant
Versus
JM BHARWAD OR HIS SUCCESSOR IN OFFICE & 3....Respondents
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Appearance:
MR SUBRAMANIAM IYER, ADVOCATE for the Applicant.
MR PRAKASH JANI, PUBLIC PROSECUTOR with MR L B DABHI, APP for the Respondent No. 4-
State.
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 01/04/2014
ORAL JUDGMENT
The petition is preferred invoking extraordinary jurisdiction of this Court under Article Page 1 of 20 R/SCR.A/1160/2014 JUDGMENT 226 of the Constitution of India with the following prayers:
"9(a) Declaring that the reasons mentioned in the communication dated 13/01/2014 is absurd, illegal, irrational and in clear violation of law laid down by the Supreme Court in the case of Lalitakumar and further be pleased to quash and set aside the same.
(b) The Hon'ble Court be pleased to declare that the action of respondents No.1 and 2 of refusing to register the complaint as FIR is in contravention of provisions of Section 154 (1) and Section 154 (4) of the Code of Criminal Procedure respectively and also in violation of the law laid down by the Supreme Court in the case of Lalitakumari and consequently be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing respondents Nos.1 and 2 to register the complaint at Annexure - A as an FIR.
(c) The Hon'ble Court be pleased to direct the respondent No.4 to take appropriate action against respondents No.1, 2 and 3 for not carrying out the mandate of law as laid down by the Hon'ble Supreme Court in the case of Lalitakumari."
1.1 It is not necessary to quote rest of the reliefs.
2. Briefly stated, the petitioner lodged a complaint on 06/01/2014 (Annexure-A) with the Gandhinagar Police Station alleging offences punishable under Sections 120B, 166, 167, 188, 409, 465, 467, 468, 471, 474 and 509 of the Indian Penal Code (for short IPC). The case of the petitioner, in brief, was that his conversation and that of one Mansi Soni was being taped and put under surveillance without any lawful orders of the competent Page 2 of 20 R/SCR.A/1160/2014 JUDGMENT authorities.
3. After the said complaint, the petitioner was informed by a communication (Annexure-B) dated 13/01/2014 that, no orders putting the official telephone he was using while discharging his duties as Municipal Commissioner, Bhavnagar under surveillance were passed. The communication was however silent as regards surveillance / taping of the conversation of telephone of aforementioned Mansi Soni and the petitioner.
4. The petitioner has also produced on record the transcripts of the communication which according to him were the result of the taping and surveillance of the aforementioned persons i.e. Ms.Soni and the petitioner.
5. As can be seen from the prayers quoted above, the predominant grievance of the petitioner is against nonregistration of the FIR and a direction for initiating departmental proceedings against the erring Officer.
6. During the course of arguments, a question was raised as to whether in face of alternative remedies as pointed out in Sakiri Vasu Vs. State of Uttar Pradesh and others [2008 (2) GLH 269], this Court would exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. Another question is as to whether, in absence of Page 3 of 20 R/SCR.A/1160/2014 JUDGMENT representation to the competent authority, a writ of mandamus directing a disciplinary action against the erring Officer can be issued? Thus, this Court has heard the parties on the aforementioned limited aspects.
7. Learned Counsel for the petitioner would strenuously urge this Court to exercise the jurisdiction while relying upon Lalita Kumari Vs. State of Uttar Pradesh & Others [(2012) 4 SCC 1]. In that case, which was instituted under Article 32 of the Constitution of India praying for a writ of Habeas Corpus, it was noticed by the Hon'ble Apex Court that after initial reluctance, the FIR was registered only after direction of the Superintendent of Police, but thereafter no action was being taken.
8. The aforementioned Lalita Kumari's case has its root in the Lalita Kumari's case in [2008 (7) SCC 164] (herein after referred to as Lalita KumariI). It appears that initially no FIR was being registered and therefore, writ petition was moved before the Hon'ble Supreme Court. Directions were given for registration of the FIR. Still however, since the Police did not act, a 2nd case was filed being Lalita Kumari Vs. Government of Uttar Pradesh [(2012) 4 SCC 1] (herein after referred to as Lalita KumariII) where in paragraph No.6 the Hon'ble Supreme Court defined the scope of the petition. The same can be quoted as under:
"6.The short, but extremely important issue Page 4 of 20 R/SCR.A/1160/2014 JUDGMENT which arises in this petition is whether under Section 154 of the Code of Criminal Procedure Code, a police officer is bound to register an FIR when a cognizable offence is made out or he has some latitude of conducting some kind of preliminary enquiry before registering the FIR."
9. Various issues were addressed and authorities were cited and ultimately the Hon'ble Supreme Court found the divergent views in various decisions on the aforementioned issues and thus the matter was referred to a Constitutional Bench.
10. The Constitutional Bench considered and answered the issue aforesaid in Lalita Kumari Vs. Government of Uttar Pradesh [(2014) 2 SCC 1](herein after referred to as Lalita KumariIII).
11. Before embarking upon exercise to appreciate the ratio laid down in Lalita KumariIII (Supra), the arguments advanced before this Court may be noticed.
12. Learned Counsel for the petitioner would submit that the nature of prayers sought for in this petition cannot be granted under Cr.PC or the learned JMFC / Metropolitan Magistrate and therefore a writ petition under Article 226 of the Constitution of India is maintainable. He also contended that the Police Officer/s did not say anywhere in its communication that no cognizable offence was made out and therefore, he had no discretion to opt against registration of FIR. It was also contended that the decision of the erring Officer not to register the FIR Page 5 of 20 R/SCR.A/1160/2014 JUDGMENT is being questioned in this petition and therefore it must be entertained. Relying upon Lalita KumariIII (Supra), the contention is that the erring officer in the event of nonregistration of the FIR disclosing cognizable offence, exposes himself to departmental proceedings which can be ordered under Article 226 of the Constitution and therefore, there is no question of invoking alternative jurisdiction. It was also contended that pre Lalita Kumari's three decisions, the legal position in the matter of registration of the FIR was not crystallized and divergent views were expressed either holding that it was mandatory for the Police Officer to register an FIR, if cognizable offence is made out or leaving the registration aspect to the discretion of the Police Officer.
13. According to the learned Counsel in Lalita KumariIII (Supra), the Hon'ble Supreme Court crystallized the above legal position by holding that it was mandatory for the Police to register an FIR once cognizable offence is disclosed and that only exception was in relation to the categories of cases specified by the Hon'ble Supreme Court where before registration, a sort of preliminary inquiry can be made. According to the learned Counsel, thus Sakiri Vasu (Supra) mandating exhaustion of alternative remedies before exercise of powers under Article 226 stood impliedly overruled. It was argued that Lalita KumariIII(supra) was a petition under Article 32 of the Constitution of India and it was entertained by the Hon'ble Supreme Court without any objection from Page 6 of 20 R/SCR.A/1160/2014 JUDGMENT anyone. Learned Counsel would invite attention of this Court to paragraph Nos.46, 47, 71,82,96 and 97 of Lalita KumariII(supra). In paragraph No.47, cited by the learned Counsel appearing before the Hon'ble Supreme Court, Sakiri Vasu (supra) was referred. In the aforementioned paragraphs relied upon by the learned Counsel for the petitioner, various provisions of law including those of Cr.PC were referred to. It is, however, not necessary to elaborately discuss the facts of Lalita KumariII (supra) inasmuch as, after considering those facts ultimately a reference came to be made to the Constitutional Bench as aforesaid and thus ultimate decision was taken in Lalita Kumari-III (supra).
14. As regards the prayer to take action against derelicting Officer, it was fairly conceded by the learned Counsel that, no representation on that count was made to the authorities authorized to take disciplinary action against the erring Officer. Thus, the question as to whether, in absence of the representation, a writ would lie is also required to be considered in this petition.
15. As against the above submission, learned Public Prosecutor Mr.Prakash Jani with Mr.L B Dabhi, learned APP, while inviting attention of this Court to various authorities undermentioned would urge this Court to relegate the petitioner to alternative remedy.
Page 7 of 20R/SCR.A/1160/2014 JUDGMENT
1. Ahmedabad Urban Development Authority Vs. Manilal Gordhandas & Ors., [(1996) 11 SCC 482].
2. Minu Kumari & Anr. Vs. State of Bihar & Ors., [(2006) 4 SCC 359].
3. Alieque Padamsee & Ors. Vs. Union of India & Ors., [(2007) 6 SCC 171].
4. Sakiri Vasu Vs. State of U.P. [(2008) 2 SCC 409].
5. Rashid Ahmed Vs. The Municipal Board [AIR (37) 1950 SC 163].
6. K S Rashid & Son Vs. Income Tax Investigation Commission & Ors., [AIR 1954 SC 207].
7. Union of India Vs. V.T.R. Varma [AIR 1957 SC 882].
16. He would contend that though powers under Article 226 of the Constitution of India to issue a writ of mandamus cannot be disputed, a catena of decisions right from 1950 show that ordinarily in the face of the alternative remedy, the Court would not exercise such extraordinary powers.
17. Having considered the rival contentions as also the authorities, the predominant question that needs to be addressed is whether in the light of the facts and circumstances of the case, extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is required to be invoked in the Page 8 of 20 R/SCR.A/1160/2014 JUDGMENT face of alternative remedies provided under the Cr.PC?
18. It cannot be disputed that the predominant object of filing this petition is to seek a writ of mandamus directing the erring authorities to register an FIR. It is in the context of the averments made in the petition that the reliefs prayed for by the petitioner are required to be appreciated. True that, the nature of relief clause 9(a) can be granted by the High Court under Article 226 of the Constitution and the learned Magistrate, if approached, may not be able to quash and set aside the reasons in the communication dated 13/01/2014. But, the question is, whether relief in terms of paragraph No.9(a) is a real relief or is it a camouflage intending to maintain a petition under Article 226 of the Constitution of India? In other words, is it necessary to seek relief in terms of paragraph No.9(a) or the relief in terms of paragraph NO.9(b) would also serve the purpose of the relief in terms of paragraph No.9(a)? It is, quite obvious that, if the relief in terms of paragraph No.9(b) is granted, the FIR would be registered in which case, relief in terms of paragraph No.9(a) would be redundant. Thus, what is predominantly prayed is the registration of FIR and other reliefs are either unnecessary or incidental and therefore submission that petition should be maintained since relief in terms of paragraph No.9(a) cannot be granted by the Magistrate's court deserves no merit.
19. Learned Counsel for the petitioner laid much Page 9 of 20 R/SCR.A/1160/2014 JUDGMENT emphasis on the fact that a petition under Article 32 of the Constitution of India in Lalita KumariII (Supra) was entertained by the Hon'ble Apex court without any reservation and therefore, this Court also without any reservation must exercise the powers under Article 226 of the Constitution of India. In other words, the purport of the argument is that the moment, the superior forum exercises its jurisdiction without reservation, that fact by itself would become a binding ratio on the High Court. This argument needs a close scrutiny.
20. A ratio is not what the Court decides on facts, but it is, what is decided on law. Nowhere, in Lalita Kumari (Supra), question of maintainability of petition was raised and therefore, it cannot be contended that such aspect was decided by the Hon'ble Supreme Court. A Court may entertain a petition in its discretion in the face of alternative remedy, but that would not mean that a ratio to that effect is laid by Court by mere entertainment of a petition.
21. In Mohandas Issardas And Ors. vs A.N. Sattanathan And Ors. [AIR 1955 BOM. 113], which is a binding decision, one of the issue raised before the Division Bench headed by Chief Justice Chagla (as His Lordships then was), a question as to what is binding obiter cropped up and was extensively addressed. Speaking through Chief Justice Chagla, the Court while pointing out a distinction between the ratio and a binding obiter in paragraph No.5 and 6 ruled thus:
Page 10 of 20R/SCR.A/1160/2014 JUDGMENT "5. Before we turn to the Judgment of the Supreme Court, it is necessary to have our minds clear as to what is an 'obiter dictum' which has a binding effect upon a Court. It Is rather significant to bear in mind that In England an 'obiter dictum' has no binding effect either upon a coordinate Court or upon a subordinate Court. An 'obiter dictum', especially of an eminent judicial tribunal like the Privy Council or the House of Lords, would undoubtedly be entitled to the highest respect. But a Judge in England would not feel that he would be bound by an opinion expressed by the higher tribunal. In India, we have perhaps advisedly made a departure from the principle operating in England with regard to 'obiter dicta'. At a time when the Judicial Committee of the Privy Council was the highest judicial tribunal in the Empire, as it then was, the Courts in India felt that it would be in the interests of judicial uniformity and judicial discipline if not only they accepted the decisions of the Privy Council, Which indeed were binding upon them, but also accepted the 'obiter dicta' of the Privy Council as binding upon them.
The feeling was that, if the Privy Council expressed an opinion on a point which, although not necessary for decision, clearly indicated the opinion formed by the Privy Council on a question of law, then the Courts in India should accept that as an authoritative pronouncement on the particular aspect of the law and treat that pronouncement as binding, The Supreme Court has now taken the place of the Privy Council and we would like to say unhesitatingly that we must show the same respect for the 'obiter dicta' of the Supreme Court that we did for those of the Privy Council. The Supreme Courts, is the highest Judicial tribunal in India today and it is as much necessary in the interests of judicial uniformity and judicial discipline that all the High Courts must accept as binding the 'obiter dicta' of the Supreme Court in the same spirit as the High Courts accepted the 'obiter dicta' of the Privy Council.
6. But the question still remains as to what is an 'obiter dictum' given expression to by the Supreme Court which is binding upon the Courts in India. Now, an 'obiter dictum' is an expression of opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the tribunal. Two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion of the tribunal on the Page 11 of 20 R/SCR.A/1160/2014 JUDGMENT question which was not necessary to decide the case would be only an 'obiter dictum'.
Mr. Palkhivala's contention is that an 'obiter dictum' is any definite opinion expressed by the higher tribunal whether the point arose before it or not. Mr. Palkhivala has attempted to make a distinction between an opinion and a definite opinion. He says that, if the higher Court says that a certain view may be possible, then It is not a definite expression of opinion, but of the tribunal definitely expresses its opinion, and not merely tentatively, then it is unnecessary for us to consider whether any points arose for determination before the higher authority, and the mere expression of opinion itself, provided it is definite, would become an 'obiter dictum', and, in India, binding upon the Courts if the 'obiter dictum' is that of the Supreme Court. In our opinion, that argument appears to be entirely untenable. The very reason why the Courts in India agreed to be bound by the 'obiter dicta' of the Privy Council was that the highest judicial authority in the Empire had applied its mind to a question of law which arose before it for its determination; and however unnecessary it was for it to decide that question, having expressed an opinion on that point it became an authoritative pronouncement on that question of law, and the Privy Council, by deciding that question of law, set its seal of approval upon that question of law. It cannot be suggested that the doctrine of 'obiter dicta' was so far extended as to make the Courts bound by any and every, expression of opinion either of the Privy Council or of the Supreme Court, whether the question did or did not arise for the determination of the higher judicial authority.
(emphasis supplied)
22. Thus, only a question, which is necessary for determination of a case would constitute ratio decidendi and a question of law not necessary for a decision of the case but raised and decided is obiter dictum. It was ruled that the superior forum having applied its mind to the question of law be it obiter or a ratio decidendi would bind the subordinate Court. Thus, it is clear that mere entertainment of the petition without a question being raised as to maintainability cannot be taken as a ratio or a Page 12 of 20 R/SCR.A/1160/2014 JUDGMENT binding obiter. Such an argument of the learned Counsel for the petitioner has no merits and therefore rejected.
23. 2nd limb of argument is that Lalita Kumari III (Supra) pronounces Section 154 to be mandatory and once a violation of the mandate exists on record of the High Court, as also the infringement of the Hon'ble Supreme Court decision is observed, the only remedy that can be availed by the petitioner is the one under Article 226 of the Constitution of India. This argument, if accepted, would lead to absurdity, inasmuch as, there are various mandatory provisions in the Indian statutes and thus acceptance of such argument would mean that in every case of violation of mandatory provisions, the writ jurisdiction will have to be exercised irrespective of existence of alternative remedy.
24. The test for exercising a jurisdiction under Article 226 of the Constitution is not whether the provision is mandatory or not. Therefore, on the ground that the provision subsequent to the decision in Sakiri Vasu (supra) was held to be mandatory, the petition under Article 226 of the Constitution cannot be maintained.
25. Learned Counsel would also contend that since reference to Sakiri Vasu (Supra) was made in Lalita Kumari-II (supra) and thereafter the Hon'ble Apex Court went on to hold that the provisions of Page 13 of 20 R/SCR.A/1160/2014 JUDGMENT Section 154 (1) of Cr.PC were mandatory, Sakiri Vasu (Supra) is impliedly overruled. This argument is infirm on various counts. As is evident from paragraph No.9 of Sakiri Vasu (Supra), the petitioner sought a writ for a direction for investigation of the matter by Central Bureau of Investigation. The petition was dismissed and the Hon'ble Court in the process referred to Section 154(3) and 156(3) and various other provisions of Cr.PC and considered various authorities and it was held in paragraph No.17 thus:
"17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation."
26. The Hon'ble Supreme Court went on to point out that when a power is given to an authority to do something, it includes such incidental implied power which would ensure the proper attention of that thing. On the basis of the above principle, the Hon'ble Supreme Court explained various provisions including 156(3) holding that, it is a very wide provision enabling a Magistrate not only to order registration of FIR, but also to monitor it, if necessary. The Page 14 of 20 R/SCR.A/1160/2014 JUDGMENT Hon'ble Supreme Court pointed out various alternative remedies available under the Cr.PC to the persons having grievance of nonregistration of the FIR. Relevant observations are contained in paragraph Nos.24, 25, 26 and 27 which are quoted for convenience.
"24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is verybriefly 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 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).
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 Page 15 of 20 R/SCR.A/1160/2014 JUDGMENT 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 (though 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. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C."
27. Thus, the Hon'ble Supreme Court emphasised on the fact that the High Court would not ordinarily exercise a jurisdiction under Article 226 of the Constitution of India or Section 482 of the Cr.PC in the face of alternative remedies. As is rightly pointed out by learned Public Prosecutor, by virtue of paragraph No.37, the Hon'ble Supreme Court intended to bring to the notice of the High Court the said legal position so that it is implemented in its letter and Page 16 of 20 R/SCR.A/1160/2014 JUDGMENT spirit. Thus, Sakiri Vasu (Supra) dealt with a situation similar to the one on hand.
28. In Lalita KumariIII (supra), the Hon'ble Supreme Court, after elaborately discussing various aspects including the decision cited before it and the arguments advanced summarized the ratio laid down by it in paragraph No.120 to 120.8, which are quoted herein under for convenience.
"120. In view of the aforesaid discussion, we hold:
120.1 Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences Page 17 of 20 R/SCR.A/1160/2014 JUDGMENT
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
29. Thus, it is evident that Hon'ble Supreme Court ruled in Lalita KumariIII (supra) about the mandate contained in Section 154 of the Cr.PC. In the entire judgment, there is no whisper on the question of exercise of the jurisdiction under Article 226/227 or Article 32 of the Constitution in the face of the alternative remedy. That issue therefore was not raised and the learned Counsel for the petitioner is unable to contend that, it was raised before the Hon'ble Supreme Court in Lalita KumariII (supra).
30. In view of the above discussion, it would be absurd to say that a mere reference to Sakiri Vasu (supra) in Lalita Kumari (supra) would impliedly overrule Sakiri Vasu (supra). A judgment can be said Page 18 of 20 R/SCR.A/1160/2014 JUDGMENT to have been impliedly overruled, only if, the Bench comprising of higher strength than the previous Bench expresses an opinion on law contrary to the one expressed by a previous bench. That being not the position, in the opinion of this Court, Sakiri Vasu (Supra) holds the field independently of Lalita Kumar (Supra); inasmuch as, unlike Lalita Kumari (Supra), Sakir Vasu (Supra) rules on alternative remedies, as discussed above. Therefore, Sakiri Vasu (Supra) can well be pressed into service for rejection of a petition filed without exhausting alternative remedies pointed out therein.
31. The abovementioned discussion would show that as a general rule, as pointed out in various cases by learned Public Prosecutor, the High Court would not exercise extraordinary jurisdiction under Article 226/227 of the Constitution in the face of alternative remedies and would rather relegate the petitioner to such remedy.
32. Further, as observed herein above, the learned Counsel for the petitioner candidly admitted that no effective representation has been made seeking a departmental inquiry against the erring Police Officer, to respondent No.4. It cannot be disputed that a writ of mandamus or a direction in the nature of mandamus would presuppose a failure of duty cast upon statutory authority.
Respondent No.4 cannot be said to have defaulted in discharge of his duties to take disciplinary action Page 19 of 20 R/SCR.A/1160/2014 JUDGMENT against the erring Officer in absence of a representation pointing out such dereliction of duties.
33. Further, the question of holding departmental inquiry against the erring Officer in terms of Lalita Kumari (supra) would arise only on the satisfaction of the disciplinary authority that the said officer derelicted the registration of the information disclosing cognizable offence, as an FIR. It is, thus, premature to say that the erring Officer exposed himself to the disciplinary proceedings.
34. In the result, the petition cannot be entertained in the face of alternative remedies. It is, therefore, rejected only on that ground without entering into merits of the case. There shall be no order as to costs.
(G.R.UDHWANI, J.) sompura Page 20 of 20