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2024 DIGILAW 1073 (AP)

Obilisetty Ganga Raja Kumar v. State of A. P.

2024-08-12

DHIRAJ SINGH THAKUR, RAVI CHEEMALAPATI

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JUDGMENT : Ravi Cheemalapati, J. The appellant, who was the original writ petitioner, preferred this writ appeal feeling aggrieved by the orders dated 07.03.2024 passed by the learned single Judge in dismissing the writ petition vide W.P.No.1548 of 2014 filed by him to declare the inaction of the police officials in registering the crime against respondent no.6 despite making complaint disclosing a cognizable offence. 2. The grievance of the appellant, who was the writ petitioner in the writ petition covered under the orders impugned in this writ petition, in nutshell, is that he submitted a written complaint dated 26.09.2012 to the Superintendent of Police, West Godavari District, regarding misappropriation of Trust funds committed by respondent no.6 for his own purpose and as no case was registered and no action was taken by the police officials, he sent reminders and despite the same no crime was registered. Questioning the inaction, he filed the writ petition referred to above. 3. The learned Single Judge, upon considering the material available on record and the submissions made by the learned counsel, dismissed the writ petition holding that the remedy available to the writ petitioner is by availing the relevant provisions of the Code of Criminal Procedure but not by way of filing writ petition. The said orders are assailed in this Writ Appeal. 4. Heard Sri Srinivas Rao Pappu, learned counsel for appellant and Ms. S. Pranathi, learned Special Government Pleader for respondents. 5. Sri Srinivas Rao Pappu, learned counsel, would contend that whenever any public authority fails to perform any statutory duty mandated by law, the person aggrieved can avail writ remedy seeking a writ of mandamus for enforcement of the said duty. The learned counsel would further submit that Section 154(2) of Code of Criminal Procedure (in short “CrPC.”) and also the observations made by the Hon’ble Supreme Court in Lalitha Kumari Vs. State of Uttar Pradesh, (2014) 2 SCC 1 emphasizes that a mandatory duty is cast upon the Police Officer to register the First Information Report, whenever he receives information/report regarding commission of a cognizable offence. He would further submit that mere availability of an alternate remedy cannot and should not be a ground to dismiss the writ petition, when non performance of mandatory statutory duty declared by a constitutional court is very much glaring and patent. He would further submit that mere availability of an alternate remedy cannot and should not be a ground to dismiss the writ petition, when non performance of mandatory statutory duty declared by a constitutional court is very much glaring and patent. He would further submit that the learned single Judge did not consider the purport of Lalitha Kumari’s case (supra 1) in its true spirit and so also the other pronouncement of the Hon’ble Supreme Court in Criminal Appeal No.2351 of 2023, pronounced on 08.08.2023, Sindhu Janak Nagargoje vs. The State of Maharasthra and erred in concluding that writ petition is not a proper remedy. The learned counsel would further contend that in view of the Constitution Bench judgment of the Hon’ble Supreme Court in Lalitha Kumari’s case, which is binding on High Courts as per Article 141 of the Constitution of India, the learned single Judge ought to have allowed the writ petition directing the concerned police officials to register First Information Report, instead directing the petitioner to avail alternate remedy, which may ultimately lead to improper investigation causing injustice to the petitioner. Accordingly, prayed to allow the writ appeal. 6. Per contra, Ms. S. Pranathi, learned Special Government Pleader, would contend that Sections 154(3) and 200 of the Criminal Procedure Code provide an efficacious remedy to the person aggrieved of non-registration of the First Information Report. She would further submit that the Hon’ble Supreme Court had dealt with the issue of the remedies available to the aggrieved of non-registration of FIR in Sakari Vasu v. State of U.P., (2008) 2 SCC 409 and Sudhir Bhaskara Rao Tambe v. Hemant Yashwant Dhage and others, (2016) 6 SCC 277 and in clear and unambiguous terms held that the complainant must avail of his alternate remedy under Section 156(3) CrPC. by approaching the Magistrate concerned. She would further submit that rule of exhaustion of statutory remedies forbade the petitioner from availing writ jurisdiction and the learned single Judge had rightly dismissed the writ petition, leaving it open to the petitioner to avail the alternate remedy provided in CrPC. There are no merits in the writ appeal and the same deserves dismissal. Accordingly, prayed to dismiss the Writ Appeal. 7. The grievance of the appellant is non-registration of the complaint submitted by him to police disclosing a cognizable offence of misappropriation of trust funds by respondent no.6. There are no merits in the writ appeal and the same deserves dismissal. Accordingly, prayed to dismiss the Writ Appeal. 7. The grievance of the appellant is non-registration of the complaint submitted by him to police disclosing a cognizable offence of misappropriation of trust funds by respondent no.6. The learned counsel for the appellant, in challenging the order impugned, placed heavy reliance on Lalitha Kumari’s case in support of his contention that the learned Single Judge had left with no option except directing the police authorities to register the complaint as an FIR. 8. In Lalitha Kumari’s case (supra 1), the Constitution Bench analyzed the relevant provisions of the Cr.P.C. and while holding that registration of FIR is mandatory for a police officer whenever he receives an information regarding commission of cognizable offence in view of the language employed in Section 154 of Cr.P.C., set apart certain category of cases where preliminary inquiry is permissible. The relevant conclusions given in Para-120 are extracted hereunder : “120.1. The 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. If 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.” 9. The above observations make it abundantly clear that whenever a police officer receives any complaint disclosing commission of a cognizable offence, he shall register FIR and in such situation no preliminary inquiry is permissible. 10. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.” 9. The above observations make it abundantly clear that whenever a police officer receives any complaint disclosing commission of a cognizable offence, he shall register FIR and in such situation no preliminary inquiry is permissible. 10. No doubt, in Sindhu Janak Nagargoje (supra 2) while dealing with the issue of non registration of the complaint filed by the appellants therein, the Hon’ble Supreme Court directed the concerned respondents to proceed further with the complaints filed by them in accordance with law. 11. The question that falls for consideration in this writ appeal is regarding maintainability of writ petition in view of availability of alternate remedy in the form of Section 156(3) read with Sections 190 & 200 of Cr.P.C. 12. In Sakari Vasu v. State of U.P (supra 3), the Hon’ble Supreme Court while dealing with similar issue held at para-11 as follows : “In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation is made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.” 13. In All India Institute of Medical Sciences Employees Union v Union of India, the Hon’ble Supreme Court in paras-4 to 6 held as follows : “4. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.” 13. In All India Institute of Medical Sciences Employees Union v Union of India, the Hon’ble Supreme Court in paras-4 to 6 held as follows : “4. When the information is laid with the police but no action in that behalf was taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/ evidence recorded prima facie discloses offence, he is empowered to take cognizance of the offence and would issue process to the accused. 5. In this case, the petitioner had not adopted either of the procedure provided under the Code. As a consequence, without availing of the above procedure, the petitioner is not entitled to approach the High Court by filing a writ petition and seeking a direction to conduct an investigation by the CBI which is not required to investigate into all or every offence. The High Court, therefore, though for different reasons, was justified in refusing to grant the relief as sought for. 6. The special leave petition is accordingly dismissed. If, however, does not preclude the petitioner to follow either of the procedure as indicated above, if so advised and deemed appropriate.” 14. It is thus clear from the above observations that if any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted. 15. In the instant case, the petitioner did not avail the efficacious alternate remedy available to him. In Sakari Vasu (supra 3), the Hon’ble Supreme Court, at Para-25 held as follows : “25. 15. In the instant case, the petitioner did not avail the efficacious alternate remedy available to him. In Sakari Vasu (supra 3), the Hon’ble Supreme Court, at Para-25 held as follows : “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 CrPC. 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 alternate remedy, first under Section 154(3) and Section 36 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3).” 16. In Sudhir Bhaskara Rao Tambe v. Hemant Yashwant Dhage and others (supra 4) the Hon’ble Supreme Court at para-3 the end result in case High Court entertains writ petitions of the similar nature now covered under appeal, held as follows : “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 alternative 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.” 17. The observations not only lay down that in view of availability of alternate effective remedy to the person aggrieved of non-registration of his complaint, writ for the said purpose is not maintainable, but also caution the High Courts the consequences that may ultimately result, if writ petitions of that nature are entertained. Whereas the issue regarding availability of alternate remedy has not been dealt with in Sindhu Janak Nagargoje’s case relied on by the learned counsel for the appellant. 18. Whereas the issue regarding availability of alternate remedy has not been dealt with in Sindhu Janak Nagargoje’s case relied on by the learned counsel for the appellant. 18. The apprehension of the writ petitioner that there may be improper investigation, in case he invokes the remedy under Section 190 read with 200 CrPC is concerned, the decisions referred to supra clarified the ambit of Section 156(3) CrPC is wide enough to empower the Magistrate to direct proper investigation to be made and also to monitor the investigation to ensure a proper investigation. 19. The learned single Judge placed reliance on the orders dated 30.07.2020 passed in W.P.No.8384 of 2020 and batch, for dismissing the writ petition, wherein, a learned single Judge of this Court in the said judgment discussed at length the various decisions of the Hon’ble Supreme Court holding the field on the subject in conjunction with Lalitha Kumari’s case and rejected the writ petition with a direction to the petitioners to avail alternate remedy available to them in CrPC. 20. The observations and findings in Lalitha Kumari’s case nowhere enunciate a ratio decidendi that the person aggrieved can avail writ remedy bypassing the alternate efficacious remedy provided in CrPC and what was stated therein is that whenever a police officer receives any complaint disclosing commission of a cognizable offence, he shall register FIR without making any preliminary inquiry. Therefore, the said decision cannot come to the rescue of the appellant in the given set of facts. 21. In view of the above, the learned single Judge had rightly dismissed the writ petition holding that the remedy available to the writ petitioner is by availing the relevant provisions of the Code of Criminal Procedure but not by way of filing writ petition. The order impugned in this writ appeal requires no interference of this Court. The writ appeal lacks merits and deserves dismissal. 22. Accordingly, the Writ Appeal is dismissed. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.