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  Judgement - 08KLC-2387
 
   
   
 

(Before V.Ramkumar, J)
Tuesday, the 1st January, 2008/11th Pousha, 1929

Party Array / Case No.


WP(C).No. 29637 of 2007(C)

      John C.V.@John Peruvanthanam  :      Petitioner

Vs.

                         State of Kerala & ors   :      Respondents

Judgement



     

     

     

    JUDGMENT(Full Text)

    V.Ramkumar, J:_

     

    1.   Whether a writ in the nature of mandamus or an appropriate direction under Art.226 of the Constitution of India can be issued by the High Court against the officer in-charge of a police station who refuses to register a crime on receipt of a written complaint alleging the commission of cognizable offences?

          This is the interesting question which crops up for consideration in this Writ Petition filed under Art.226 of the Constitution of India. Incidentally a further question arises as to whether this court, following the verdict of the Apex Court in Pepsi Food's Case (AIR 1998 SC 128) can treat the Writ Petition as one filed under sec.482 Cr.P.C and direct the Station House Officer to register a crime.

                                                            THE COMPLAINT

    2.   RESUME OF Ext.P1 complaint sent by the petitioner herein through speed post of simultaneously to the Director General of police, Commissioner of Police, Thiruvananthapuram City and Sub Inspector of police, Cantonment, Thiruvananthapuram is as follows:-

          268.872 hectares (664.38 acres) of land called the Merchiston Estate comprised in various survey numbers of Thennoor Village in Ponmudi area which originally belonged to the Birla Grop was purchased by one Sevy Mano Mathew on 30-3-2005. The right, title, interest and possession of the aforesaid land along with other ecologically fragile forest land with effect from 2-6-2000 onwards had already vested in the State under Sec.3(1) of The Kerala Forest (Vesting and Management of Ecologically Fragile Land) Ordinance 6 of 2000 which was subsequently replaced by the Kerala Forest (Vesting and Management of Ecologically Fragile) Act, 2003 which was published on 8-6-2005 and which came into force with retrospective effect from 2-6-2000 that is, the date from which Ordinance 6 of 2000 came into force. Section 5 of both the ordinance as well as the subsequent Act declares that ecologically fragile land so vested in the State shall be reserve forest and liable to be managed as such. Thus, on 30-3-2005 when Sevi Mano Mathew purchased the aforesaid 268.872 hectares of land from Birla Group neither the transferor (Birla Group) nor the transferee (Sevy Mano Mathew) had any right, title, interest or possession in respect of the said land which had already vested in the State. A part of the said land admeasuring 23.7371 hectares had been covered by proceeding under the Kerala Private Forests (Vesting and Assignment) Act, 1971 while the property was in the possession of the Birla Group. Even though the Forest Tribunal when moved under Sec.8 of the said Act had held that the said 23.7371 hectares of land had vested in the State, on appeal preferred by the Birla Group before the High Court, it was held that the said land had not vested in the State and the High Court directed restoration of the possession of the said land to then owner, Birla Group. But before possession was restored to the owner, the ecologically fragile land ordinance came into force on 2-6-2000 vesting the right, title interest and possession of the entire 268.872 hectares of land including the 23.7371 hectares in the State. After the illegal purchase on 268.872 hectares of land from the Birla group, Sevy Mano Mathew started felling trees from a portion of the land resulting in the Forest Department registering cases against him. On 13-12-2006, the Indian Space Research Organization (ISRO for short) issued a paper publication calling for offers from property owners in Ponmudi area for purchase of 217 acres of land for the purpose of setting up a Space Technology Institute. When the ISRO wrote to the Revenue Minister for allotment of 100 acres of land in Ponmudi area for establishing the said Space Technology Institute, the Government had replied that no land was available. In the meanwhile, on 7-3-2007 Savy Mano Mathew entered into an agreement with ISRO for sale of 217 acres out of the 268.872 hectares referred to above. Savy Mano Mathew also obtained a possession certificate from the Village Officer, Thennoor to the effect that he was in possession of 268.872 hectares of land (pursuant to the illegal purchase of the land from Birla Group). He had also obtained a tax receipt from the village officer evidencing payment of land revenue for the said land. Subsequently, Savy Mano Mathew filed a petition before the Labour Minister Sri.P.K. Gurudasan alleging that the forest officials were harassing him by registering cases against him for cutting trees from the property purchased by him. On 16-5-2007 a meeting was convened in the Chamber of the Forest Minister Sir.Binoy Viswam. Besides, the Forest Minister and the Labour Minister those who participated in the meeting were Savy Mano Mathew, K.Abbas representing CI.T.U. in Merchiston Estate, Patrick Gomus, D.F.O, Thiruvananthapuram, N.Sukumaran, Addl. Secretary, Department of Forest and Wild Life, Sri. K.J.Varghese, Conservator of Forest, Southern Circle, Kollam and Advocate Sri.C..V.Vimal Roy. In the said meeting four decisions were taken as follows:-

    i.    The estate owner should not cut trees or do any other activities in respect of 23.7371 hectares of land which had been under the control of the Forest Department right from 1971 onwards and which has been included among the ecologically fragile land.

    ii.    For the purpose of firewood the estate owner can cut trees from the land in his possession. But under no account such firewood shall be taken outside the estate.

    iii.   The estate owner shall submit an application before the custodian for the purpose of de-notifying the ecologically fragile land other than 23.7371 hectares.

    iv.   For the purpose of attending to the maintenance of the labour quarters in the Estate, the estate owner can cut trees from the land in his possession after obtaining the previous permission from the custodian.


          Subsequently on 20-7-2007 Savy Mano Mathew sold 81.5 acres out of the aforesaid land to ISRO for Rs.3.26 crores. When the property in question is a reserved forest vested in the State and nobody has any right to sell or purchase the said land, it was with the connivance of the officials in the revenue, registration and forest departments that Savy Mano Mathew created records to the effect that he purchased the larger extent of land and sold a portion of the same to ISRO. In the meeting held on 16-5-2007 in the Chamber of the Forest Minister, the Forest Minister was informed by an official of the Forest Department that Savy Mano Mathew was an accused in a case involving the cutting of trees from reserved forest and that the property in question was a reserved forest which had vested in the State. In spite of knowing that the property was a reserved forest vested in the state and Savy Mano Mathew was an accused in a case involving a forest offence which is a cognizable offence, Sir.Binoy Viswa, the Forest Minister was conceding that Savy Mano Mathew was in possession of the forest land vested in the State and was prompting him to cut trees from the said property. The said act of the Forest minister is a naked violation of the verdict of the Supreme Court in the year 1997 in Godavarman Thirumulpad's case (AIR 1997 SC 1228) and also Section 27 and 84 of the Kerala Forest Act read with section 120-B I.P.C. A case may, therefore, be registered against Sri.Binoy Viswam the Forest Minister, Savy Mano Mathew and such other officials who are involved in the said illegal activity under Sections 27 and 84 of the Kerala Forest act read with section 120B I.P.C.

    S.H.O. REFUSES TO EGISTER F.I.R

    3.   The aforesaid complaint was dated 19-09-2007. Exts.P2 to P4 acknowledgment cards show that the 4th respondent Station House officer, the 3rd respondent City Police commissioner, Thiruvananthapuram and the second Respondent Director General of police received copies of Ext.P1 complaint 22-09-2007. This Writ Petition was filed on 5-10-2007 seeking a Writ of mandamus or any other writ or direction directing the 4th respondent namely, the Sub Inspector of Police, Cantonment, Thiruvananthapuram to register a crime pursuant to Ext.P1 complaint and to investigate the same in accordance with law or to issue a writ of mandamus or any other writ, order or direction directing respondents 2 and 3 namely the Director General of Police and the City Police Commissioner, Thiruvananthapuram to take appropriate action on Ext.P1 complaint. Pending the Writ Petition the 4th respondent Sub Inspector issued Ext.P5 notice dated 12-10-207 to the petitioner to the effect that after examining the averments in the complaint and the minutes of the meeting held on 16-5-2007 in the Chamber of the Forest Minister it has been reveled that no such criminal conspiracy as alleged in the compliant had taken place and that the meeting was held and the decisions were taken in good faith and that since the complaint does not allege the commission of any cognizable offence, no crime has been registered and no investigation is proposed to be conducted.

    4.   I heard Advocate Sir.P.K.Soyuz the learned counsel appearing for the Writ Petitioner, M/s. Advocate Sri. P.G. Thampi, the learned Director General of Prosecution and Adv. Sir. P.N.Sukumaran for the State and Adv. Sri. S.Sreekumar as amicus curiae.

    THE STAND OF THE STATE  

    5.   Advocate Sri. P.G. Thampi, the learned Director General of Prosecutions made the following submissions before me:-

          Even if the entire 268.872 hectares of land have vested in the State under the Ecologically Fragile Ordinance which was subsequently replaced by an Act of the Legislature, when the land includes an estate in which about 350 workers are employed, the Labour Minister was only requesting the Forest Minister and the Forest Officials to give a hearing to the grievance voiced by Sevy Mano Mathew to the effect that the Forest Department was registering cases against him resulting in the working of the estate coming to a grinding halt and thereby affecting the livelihood of 350 labourers employed in the estate. The meting held on 16-5-2007 was essentially one to allay the fears expressed by the estate owner as well as the labourers. It was an open meeting in which there was no conspiracy as alleged. The decisions taken were also in a transparent manner without any attempt to hide anything. The decisions taken will clearly show that the Labour Minister was showing great concern over the predicament of 350 labourers employed in the Estate and the Ministers were anxious to see that the action taken by the Forest Department should not bring about a stalemate in the working of the estate. The Government have the power to issue appropriate directions to ensure that the activities in the estate do not come to a grinding halt. It was essentially a labour problem in the estate involving about 350 labourers. There was no mens rea much less any criminal conspiracy either in the convening of the meeting or in the decisions taken therein. The statement made by the Minister to the effect that cutting of trees from the disputed land was not correct will show that there was no abetment of any forest offence. The Ministers only wanted a solution to the labour problem in a legal manner and that was why it was decided that the estate owner can cut the trees form the land in his possession only after obtaining the prior permission from the custodian of vested forest. Sub section (4) of Section 27 of the Kerala Forest Act and the proviso to the said sub-section will show that the activities mentioned therein will not attract an offence punishable under Section 27 of the said Act.

    THE PETITIONER'S STAND

    6.   The learned counsel for the petitioner on the other hand made the follwoign submission in support of the Writ Petition:-

          Even after being told that the property had vested in the State and the possession of the land was also with the State government the decisions taken in the meeting held on 16-5-2007 will go to show that possession of the land was being conceded to Savy Mano Mathew contrary to the provisions of the ordinance which was replaced by the Act. The decisions taken in the meeting will go to show that restriction on cutting of trees was imposed only in respect of 23.7371 hectares of land indicating thereby that there was no restriction on cutting of trees from the rest of the land 268.872 hectares of land. Similarly, prior permission of the custodian of vested forest was directed to be taken only for cutting trees for the purpose of carrying out repairs to the labourers' quarters in the estate and that too admitting that the properties were in the possession of Savy Mano Mathew and not of the State Government. The very fact that Savy Mano Mathew was directed to approach the custodian for getting the land de-notified will show that the land had admittedly vested in the State which was in possession of the same until the ecologically fragile land was re-notified again after de-notification, if any. Any person who trespasses upon reserved forest and cuts or fells any trees therefrom clearly contravenes section 27(1)(e)(iii) of the Kerala Forest Act, 1961 and punishable with imprisonment for a term which may extent to 5 years and with fine which may extent to Rs.5,000/- in addition to compensation for the damage done to the forest. It is a cognizable offence by virtue of Part II of the First Schedule of Cr.P.C. Similarly, under Section 84 of the Kerala Forest Act any person who abets any of the offences under the said Act, whether the act abetted is committed or not is punishable with the same punishment which is provided for the offence. By conceding that Savy Mano Mathew was in possession of the land, the right, title interest and possession of which had actually vested in the State and by permitting him to cut tress from the said land, an offence punishable under section 84 of the Kerala Forest Act was committed. Savy Mano Mathew had already cut tress from the land in question and the Forest Department had also registered cases against him. So an offence punishable under Section 27 of the Kerala Forest Act had already been committed and it was the abetment of the said offence already committed and to be committed which was committed in the meeting held on 16-5-2007. When a complaint alleging commission of a cognizable offence was made before the officer in-charge of a police station, he had the mandatory duty of registering the crime under Sec.154 Cr.P.C. He cannot go behind the averments in the complaint and come to a conclusion that the alleged offence could not have been committed or that the allegations in the complaint are not true. He cannot go into the question of truth or falsity of the allegation before registering the crime and conducting an investigation. The petitioner is adopting the submission made by the Amicus curiae regarding the maintainability of the writ petition. 

          AMICUS CURIAE IN SUPPORT OF MAINTAINABILITY OF WRIT PETITION

    7.   Advocate Sr.S.Sreekumar appearing as amicus curiae made the following submissions before me:

          It is now well settled that when a complaint alleging the commission of a cognizable offence is made to the officer in charge of a Police Station (i.e, Station House Officer), he has no option except to register a case and commence investigation. (vide State of Haryana v/s Bhajan Lal AIR 1992 SC 604; State of Andra Pradesh v/s Punati Ramulu AIR 1993 SC 2644; Joseph Thomas v/s Sabu George 1998(1) KLT 126 DB; Balachandran v/s State of Kerala 2000(2) KLT 352 = 2000 Crl.L.J. 3311; Velayudhan v/s State of Kerala 1998(1)KLT 364; Katteri Modieenkutty Haji v/s State of Kerala 2002(1) KLT 835; Satish Kumar Goel v/s State 2000 Crl.L.J.2176 (Delhi); lallan Chaudhary v/s State of Bihar AIR 2006 S.C.3376; Ramesh Kumari v/s State (NCT of Delhi) and others 2006(2) SCC 677 and Aleque Padmasee v/s Union of India 2007(3) KLT  1028 SC). Even though a different note has been struck in a two-Judge Bench decision of the Supreme Court in Rajinder Singh Kotoch v/s Chandigarh Administration 2007 (4) KLT 877 (S.C.). conceding to the officer in charge of a Police Station the freedom to conduct a preliminary enquiry before registering the crime, the said ruling runs counter to all the decisions thus far taken by the Apex Court which has conceded such a freedom to the SHO only in cases coming under the Prevention of Corruption Act, against a public servant as held in Sirajuddin v/s State of Madras AIR 1971 S.C. 520. It has already been settled that at the stage of registration of the crime the concerned police officer cannot embark upon an enquiry as to whether the information disclosing a cognizable offence is relevant, reliable, genuine or credible. (See State of Haryana v/s Bhajan Lal AIR 1992 S.C. 604; Katteri Moideen Kutty Haji v/s State of Kerala 2002(1) KLT 835; Lallan Chaudhary v/s State of Bihar AIR 2006 SC 3376; Ramesh Kumari v/s State (NCT of Delhi) 2006(2) SCC 677), Thus, as per the statutory mandate under Sec.154(1)Cr.P.C., the officer in charge of a Police Station who receives a complaint alleging the commission of a cognizable offence, is bound to register a crime by entering the substance of the complaint in the prescribed book kept in that behalf. It is a statutory duty the performance of which can in the event of  refusal, be enforced by the High Court by issuing a writ in the nature of a mandamus. The power of the High Court in the matter of issuing such a high prerogative writ has been lucidly sketched by the Apex Court in Comptroller and Auditor General of India v/s K.S.Jagannathan 1986(2) SCC 679. In All India Institute of Medical Science Employees' Union v. Union of India Case (1996(11) SCC 582) the writ petition filed under Article 226 of the Constitution of India was held to be not maintainable since even without seeking the formal registration of a crime before the local Police under Sec.154 Cr.P.C, the petitioner therein was seeking a direction for investigation by the CBI. That was why the Apex Court held that the remedy of the petitioner therein was to lodge a complaint before the Police under Section 154 Cr.P.C or to file a complaint before the Magistrate under Sec.190 Cr.P.C. In Hari Singh v/s State of Uttar Pradesh 2006(5) SCC 733 a writ petition was filed before the Supreme Court under Article 32 of the Constitution of India against the refusal on the part of the Police to register a crime. The Apex Court held that the remedy of the petitioner therein was to file a complaint before the Magistrate under Sec.190 Cr.P.C. In a writ petition filed under Article 32 of the Constitution of India, the Apex Court has powers to issue directions only for the enforcement of the fundamental rights conferred by Part III of the Constitution of India. But the power of the High Court under Article 226 of the Constitution of India is not so restricted. The High Court has under the said provision wider powers. In Gangadhar Janardhan Mhatre v/s State of Maharshtra (2004(7) SCC 768), even though the Apex Court held that on a refusal by the Police to take action on the information given to it by the complainant, the complainant has got the alternative remedy of filing a complaint before the Magistrate under Sec.190 read with Section 200 Cr.P.C, the writ petition filed by the complainant in that case before the High Court was not to direct the police to register a crime but was to transfer the investigation to another impartial agency. In Meena Kumari v/s State of Bihar 2006(4) SCC 359 the Apex Court was considering the options available to a Magistrate upon receipt of a police report and reversed the decision of the High Court which had dismissed the petition filed by two female accused under Section 482 Cr.P.C. In Ramesh Kumari v/s State (NCT of Delhi) 2006(2) SCC 677 even though the Apex Court taking note of the fact that the allegation was against a member of the State Police, directed the CBI to register a case and investigate the same, the Apex Court had found fault with the High Court in dismissing the writ petition filed for a direction to the officer in charge of Police Station to Register a case consequent on his refusal to do so. This decision is an authority for the position that a writ petition under article 226 of the Constitution would lie if the SHO refuses to register a case. It is true that in a three Judge's Bench decision of the Apex Court in Aleuqe Padamsee v/s Union of India 2007 (3) KLT 1028 (SC), the Apex Court after adverting to All India Institute of Medical Science Employees' Union, Gangadhar janardan Mahatre, Minu Kumari, Ramesh Kumari, Hari Singh, Lallan Chaudhari (supra) has ruled that if the police officer refuses to register an F.I.R, then the remedy of the aggrieved person is to file a complaint before the Magistrate under Section 190 read with 200 Cr.P.C. But that decision was also rendered in a writ petition filed under Article 32 of the Constitution of India and without analyzing the verdict in Ramesh Kumari in the proper prospective. It is well settled that judgments of courts are not to be construed as statutes and words in the judgments are not to be interpreted as words in a statute (vide Ashwani Kumar Singh v/s Uttar Pradesh Public Service Commission Judgments Today 2003(6) SC 184). In Velayaudhan v/s State of Kerala 1998(1) KLT 364 a learned Single Judge of his Court had entertained a writ petition under Article 226 of the Constitution of India and had directed the SHO to register the F.I.R. In Joseph Thomas v/s Sabu George 1998 (1) KLT 126 a Division Bench of this Court upheld a similar direction given by the Single Judge in a writ petition. Likewise, another Division Bench of this Court in Katteri Modieen Kutty Haji v/s State of Kerala 2002(1) KLT 835, reversing the dismissal of the writ petition by a learned Single Judge of this Court, directed the SHO to register an F.I.R and commence investigation. A similar direction was issued by a learned Single Judge of this Court in exercise of the inherent power under Sec.482 Cr.P.C. in Balachandran v/s State of Kerala 2000(2) KLT 352. Even if the petition is filed under Article 226 of the Constitution of India, this Court, can, in appropriate cases treat the petition as one filed under Article 227 of the Constitution or under Section 482 Cr.P.C. (See M/s. Pespi Foods Ltd . v/s Special Judicial Magistrate AIR 1998 SC 128 and Alexander v/s C.B.I. 2006(2) KLT 240).

    JUDICIAL EVALUATION

    8.   I would have been tempted to accept the submissions made by the amicus curiae but for the two recent judicial pronouncements by the Apex Court. The 3 Judge Bench decision of the Apex Court in Aleque Padamsee v. Union of India 2007(3) KLT 1028 (SC) was no doubt, rendered in Writ Petitions filed under Art.32 of the Constitution of India. But, a reading of paragraphs 2 and 7 of the said decision will go to show that the question posed by the Apex Court was whether a writ can be issued to the police authorities to register an F.I.R. in case they refused to register the F.I.R. paragraphs 5 to 7 of the said decision read  as follows:

          "5. When the information is laid with the police, but no action in that behalf is taken, the complainant can under S.190 read with S.200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the magistrate, after recording evidence, finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into 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 S.203 of the Code, in case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and could issue process to the accused. These aspects have been highlighted by this Court in All India Institute of medical Sciences Employees' Union (Reg) through its President v. Union of India & Ors. ((1996) 11 SCC 582). It was specifically observed that a Writ Petition in such cases is not to be entertained.

    6.   The above position was again highlighted in Gangadhur Janardhan Mhatre v. State of Maharashtra (2004 (3) KLT SN 77 (C.No.107) SC = (2003) 7SCC 768) Minu Kumari and Another v. State of Bihar and Ors. (2006 (2) KLT 588 SC (2006) 4 SCC 359) and Hari Singh v. State of U.P. (2006 (3) KLT 269 SC (2006) 5 SCC 733).

    7.      Whenever any information is received by the police about the alleged commission of offence which is cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in all India Institute of Medical Sciences's case (supra) and reiterated in Gangadhur's case (supra) the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra) Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was reiterated in Lallan Chaudhary and Others v. State of Bihar (AIR 2006 SC 3376). The course available, when the police does not carry out the statutory requirements under S.154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Ss. 190 read with S.200 of the Code. It appears that in the present case initially the case was tagged by order dated 24-2-2003 with W.P(C) 530/2002 and W.P.(C) 221/2002. Subsequently, these Writ Petitions were de-linked from the aforesaid Writ Petitions. 

    8.   The Writ petitions are finally disposed of with the following directions:

    (1)  If any person is aggrieved by the inaction of the police officials in registering the F.I.R. the modalities contained in S.190 read with Sec.200 of the Code are to be adopted and observed.

    (2)  It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions.

    (3)  So far as non-grant of sanction aspect is concerned, it is for the concerned government to deal with the prayer. The concerned government would do well to deal with the matter within three months from the date of receipt of this order.

    (4)  We make it clear that we have not expressed any opinion on the merits of the case.

                                                                                                     (Emphasis supplied)

    9.   In a nascent judgment dated 7-12-2007 in Sakiri Vasu V. State of U.P. and Others arising out of Crl. Appeal No. 1685 of 2007 (yet to be reported) the Apex court has put the position beyond the pale of controversy. This is what the apex Court has now held:-

          "24.            In view of the above mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the concerned police station to held a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Eventhough 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 he 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 grievance still persists, then he can approach a Magistrate under Section 156 (3) Cr.P.C. instead of rushing to the High Court byway of a Writ Petition or a petition under Section 482 of 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 practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his F.I.R. has not been registered by the police, or after being registered, proper investigation has not been done by the police or 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.

    28. 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".

                                                                                                       (emphasis supplied)

    10. In the light of the authoritative pronouncement by the apex court, this Court cannot encourage or entertain the writ Petition to command the Officer-in-charge of the police station to register an F.I.R, and commence investigation. The position remains the same even if the writ petition were to be treated as a petition under Section 482 Cr.P.C. Therefore, leaving the petitioner to his remedies under Section 154(3) Cr.P.C and Section 156(3) Cr.P.C and Section 190 read with Sec.200 Cr.P.C this Writ Petition is dismissed.

    11. I place on record my appreciation for Sri.S.Sreekumar who assisted the court as amicus curiae.


     

     

     

     



     
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