Bombay High Court
Jwala Jambuvantrao Dhote vs The Commissioner Of Police Cp ... on 22 August, 2022
Bench: Manish Pitale, Valmiki Sa Menezes
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 527 OF 2022
SMT. JWALA JAMBUVANTRAO DHOTE
VERSUS
THE COMMISSIONER OF POLICE, C. P. OFFICE, SADAR, NAGPUR &
OTHERS
WITH
CRIMINAL WRIT PETITION NO. 556 OF 2022
KRUSHNA PANCHAMRAO KHOPDE
VERSUS
THE COMMISSIONER OF POLICE, C. P. OFFICE, SADAR, NAGPUR &
OTHERS
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. S. P. Bhandarkar, Advocate with Mr. Ganesh Mate, Advocate for the petitioners.
Mrs. Ketki S. Joshi, I/c Public Prosecutor assisted by Mr. M.J. Khan, A.P.P. for
respondent nos. 1 and 2 in Cri.W.P. No. 527/22
Mr. A. S. Fulzele, Addl. P. P. for respondent nos.1 and 2 in Cri. W.P. No. 556/22.
CORAM : MANISH PITALE and G. A. SANAP, JJ.
DATE : AUGUST 22, 2022.
ORDER (PER : Manish Pitale, J.)
1. Heard Mr. S. P. Bhandarkar, learned counsel with Mr. Ganesh
Mate, learned counsel appearing for the petitioners and Ms. Ketki Joshi,
learned Public Prosecutor and Mr. A. S. Fulzele, learned Additional Public
Prosecutor appearing for the respondent-State authorities in these two
petitions.
2. Both these petitions have come up for consideration for the
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first time before this Court. Although, the petitions pertain to different
factual scenarios, but the question that is raised for consideration in both
these petitions is common and therefore, these petitions have been taken
up for consideration together.
3. Since, the petitioners in these petitions are seeking to invoke
writ jurisdiction of this Court, the respondent-State authorities have raised
a preliminary issue pertaining to the very maintainability of the present
petitions, in the facts and circumstances of the cases. In fact, this Court
also raised the question of maintainability of these petitions at the outset
and therefore, the learned counsel appearing for the petitioners was called
upon to address this Court on the said issue. Initially, a short adjournment
was sought to bring to the notice of this Court relevant judgments. The
learned counsel appearing for the petitioners as well as learned Public
Prosecutor and the learned Additional Public Prosecutor appearing for the
State authorities have placed reliance on the judgments of the Hon'ble
Supreme Court in order to buttress their respective stands.
4. Mr. S. P. Bhandarkar, learned counsel appearing for the
petitioners submitted that a perusal of the prayer clauses in these petitions
would show that the petitioners are specifically referring to and relying
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upon and invoking Section 157 of the Code of Criminal Procedure, in
order to seek reliefs from this Court under writ jurisdiction. It is submitted
that power under Section 157 of the Cr.P.C. is not to be confused with the
power under Section 154 thereof and therefore, reference to Section 156 of
the Cr.P.C., particularly sub-section (3) thereof, is wholly irrelevant in the
facts and circumstances of the present case. The aforesaid submission is
emphatically made on the basis that the petitioners in these petitions
cannot be relegated to the concerned Magistrate under Section 156(3) of
the Cr.PC. It is the case of the petitioners that the facts and circumstances
of the present cases and the specific grievance being raised on their behalf is
relatable to and calling upon this Court to interpret the true scope of
Section 157 of the Cr.P.C. It is specifically submitted that the factual
position in both these petitions is completely covered under Section 157 of
the Cr.P.C and that therefore, the respondent-State authorities cannot be
heard to say that applications ought to be filed by the petitioners before the
learned Magistrate under Section 156(3) of the Cr.P.C for redressal of their
grievances. This submission is made without prejudice to the contention
of the petitioners that even if there is alternate remedy available under
Section 156(3) of the Cr.P.C., the writ Court would not close its doors to
the petitioners once grievance is made out that the respondent- State
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authorities i.e. police officers, have completely failed to perform their
duties as expected under the provisions of the Code of Criminal Procedure.
It is submitted that the arguments pertaining to alternate remedy available
to the petitioners under Section 156(3) of Cr.P.C. is misplaced in the facts
and circumstances of the present cases and therefore, the present petitions
deserve to be entertained for further scrutiny and examination by this
Court.
5. By referring to to the Constitution Bench judgment of the
Hon'ble Supreme Court in Lalita Kumari .vs. Government of Uttar
Pradesh and others, reported in (2014) 2 SCC 1, it is submitted that,
although incidentally, Section 157 of Cr.P.C. did come up for interpretation
in the said judgment, a proper appreciation of the law laid down in that
context would show that the present writ petitions not only deserve to be
entertained, but they deserve to be allowed in terms of the prayers made in
these petitions. The learned counsel appearing for the petitioners also
relied upon a judgment of Kerala High Court in Anil Kumar .vs. Latha
Mohan and others, reported in 2021 SCC Online Ker. 514. Insofar as the
judgments, upon which the learned Public Prosecutor sought to rely i.e.
judgments of Hon'ble Supreme Court in Sakiri Vasu .vs. State of Uttar
Pradesh, reported in (2008)2 SCC 409 ; and Aleque Padamsee and
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others .vs. Union of India and others, reported in (2007) 6 SCC 171, the
learned counsel appearing for the petitioners submitted that the said
judgments were not relevant for the present petitions as they concern the
scope and power of the Magistrate under Section 156(3) of the Cr.P.C., in
the context of failure of police authorities to register the first information
report under Section 154 of the Cr. P.C.
6. On the other hand, Mrs. Ketki Joshi, learned Public
Prosecutor appearing for respondent nos.1 and 2 in Cri.W.P. No. 527/22
and Mr. A.S. Fulzele, the Additional Public Prosecutor appearing for the
respondent nos.1 and 2 in Cri.W.P. No. 556/22, submitted that the
contentions raised on behalf of the petitioners in both the petitions are
unsustainable and they are based on erroneous appreciation of the true
scope of the provisions of the Cr.P.C. i.e. Sections 154 to 173 thereof. It is
submitted that a bare perusal of the statements made in these writ petitions
and the prayers made therein, clearly indicate that the grievance of the
petitioners is that although, information pertaining to a cognizable offence
was provided by the petitioners to the concerned Police Officers, they
failed to take necessary steps in the matter. It was submitted that such a
situation was the subject matter of consideration before the Constitution
Bench of the Hon'ble Supreme Court in Lalita Kumari's case (supra) and it
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was specifically laid down that registration of first information report
would be mandatory, if the information disclosed commission of
cognizable offence. It was submitted that proper interpretation of the
relevant paragraphs of the said Constitution Bench judgment would show
that first information reports have been recognized in two categories i.e.
FIRs under Section 154 Cr.P.C. and FIRs under Section 157 thereof. It
was submitted that applying the said categorization as recognized in the
aforesaid Constitution Bench judgment of the Hon'ble Supreme Court in
Lalita Kumari's case (supra), the present petitions are clearly covered under
Section 154 of the Cr.P.C. and, if that be so, the grievance of the
petitioners, if any, as regards failure on the part of police machinery to
cause registration of FIR, for investigating the matters, can be raised by a
properly framed application before the competent Magistrate under
Section 156(3) of the Cr.P.C..
7. It is submitted by the learned Public Prosecutors that although
it cannot be said that writ jurisdiction of this Court can never be invoked,
but the Hon'ble Supreme Court itself has sounded a note of caution in this
context in the aforementioned judgments in Sakiri Vasu (supra) and
Aleque Padamsee and others (supra), to the effect that when the remedy of
approaching the Magistrate under Section 156(3) of the Cr.P.C. is available,
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the aggrieved persons ought not to be permitted to rush to the High Court
by invoking writ jurisdiction. By relying upon the said judgments, it is
submitted that the present petitions deserve to be dismissed.
8. We have considered the rival contentions in the backdrop of
the material placed on record and the judgments brought to our notice.
9. We are proceeding on the basis of the statements made in
these two writ petitions and the nature of the grievance that can be culled
out. We are of the opinion that the real grievance of the petitioners is that
when information pertaining to a cognizable offence was disclosed before
the police officers, according to them, necessary steps were not taken by
such officers and that the petitioners seek remedy in that regard.
10. We are of the opinion that merely referring to Section 157 of
Cr.P.C. in the petitions would not necessarily cover the case of the
petitioners under the said provision. We observe that when the
Constitution Bench of the Hon'ble Supreme Court, in the case of Lalita
Kumari (supra) has referred to Sections 154, 156 and 157 of the Cr.P.C.
and reached specific conclusions regarding two types of FIRs, it has to be
first examined at the outset as to under which type of FIR the grievance
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sought to be projected on behalf of the aggrieved persons, is covered. At
this stage, it would be appropriate to refer to the relevant portion of the
Constitution Bench judgment in Lalita Kumari's case (supra), which reads
thus :
"96. The underpinnings of compulsory registration of FIR is
not only to ensure transparency in the criminal justice -
delivery system but also to ensure 'judicial oversight'. Section
157(1) deploys the word 'forthwith'. Thus, any information
received under Section 154(1) or otherwise has to be duly
informed in the form of a report to the Magistrate. Thus, the
commission of a cognizable offence is not only brought to the
knowledge of the investigating agency but also to the
subordinate judiciary.
97. The Code contemplates two kinds of FIRs : The duly
signed FIR under Section 154(1) is by the informant to the
officer concerned at the police station. The second kind of
FIR could be which is registered by the police itself on any
information received or other than by way of an informant
[Section 157(1)] and even this information has to be duly
recorded and the copy should be sent to the Magistrate
forthwith. The registration of FIR either on the basis of the
information furnished by the informant under Section
154(1) of the Code or otherwise under Section 157(1) of the
Code is obligatory. The obligation to register FIR has
inherent advantages"
11. The aforesaid observations have been made by the
Constitution Bench of the Hon'ble Supreme Court while stating that the
only question for consideration before the said Bench related to
interpretation of Section 154 of Cr.P.C. and incidentally to consider
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Sections 156 and 157 also. It is relevant that after having held, as quoted
above, the Hon'ble Supreme Court further observed in the said judgment as
follows :
"111. Besides, the Code gives power to the police to close a
matter both before and after investigation. A police officer
can foreclose an FIR before an investigation under Section
157 of the Code, if it appears to him that there is no sufficient
ground to investigate the same. The Section itself states that a
police officer can start investigation when he has a 'reason to
suspect the commission of an offence'. Therefore, the
requirements of launching an investigation under Section
157 of the Code are higher than the requirement under
Section 154 of the Code. The police officer can also, in a
given case, investigate the matter and then file a final report
under Section 173 of the Code seeking closure of the matter.
Therefore, the police is not liable to launch an investigation
in every FIR which is mandatorily registered on receiving
information relating to commission of a cognizable offence."
12. Thus, we find that as per the law laid down in the Constitution
Bench judgment of the Hon'ble Supreme Court in Lalita Kumari's case
(supra), when information, as sought to be placed by the petitioners before
the police officers in these cases, is considered and the nature of grievances
sought to be raised on their behalf is analyzed, it is found that the grievance
of the petitioners pertains to failure on the part of the police machinery to
register FIR, as contemplated under Section 154 of Cr.P.C. The real crux of
the grievance of the petitioners appears to be failure on the part of the
police officers to follow the mandate of the judgment of the Constitution
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Bench of the Hon'ble Supreme Court in the aforesaid case, wherein, inter
alia, it is laid down that registration of FIR is mandatory under Section 154
of Cr.P.C., if an information discloses commission of a cognizable offence.
Once, we have reached the aforesaid conclusion, the contentions sought to
be raised on behalf of the petitioners and framing of prayer clauses in the
petitions referring to Section 157 of Cr.P.C., would be of no assistance to
the petitioners to successfully invoke writ jurisdiction of this Court. Even
otherwise, we find that placement of Section 157 after Sections 154, 155
and 156 and followed by Sections 158 and 159, demonstrates a scheme,
which has to be logically consrued and the mandate of the law laid down by
the Constitution Bench of the Hon'ble Supreme Court in the aforesaid case
has to be followed to the hilt.
13. We are of the opinion that applying the said position of law to
the facts of the present cases, reference to Section 157 of Cr.P.C. in the
body of the writ petitions and in prayer clauses thereof, is only an attempt
on the part of the petitioners to invoke writ jurisdiction, inter alia, on the
ground that no remedy is available to the petitioners as contemplated under
Section 156(3) of Cr.P.C. We are not in agreement with the petitioners on
that score.
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14. If the position of law laid down by the Hon'ble Supreme Court
in Sakiri Vasu (supra) and Aleque Padamsee and others (supra), is
appreciated in the correct perspective, we find that it would be
inappropriate on our part to invoke writ jurisdiction in the facts, as are
available, and on the basis of the statements made in the present writ
petitions. We are conscious of the fact that the doors of the writ Court
cannot be shut out, but equally it is significant that writ jurisdiction, in such
a situation, can be invoked only in extraordinary circumstances.
15. In the case of Sakiri Vasu (supra), while commenting upon the
scope of Section 156(3) of the Cr.P.C., the Hon'ble Supreme Court has
observed as follows :
"15. Section 156(3) provides for a check by the Magistrate on
the police performing its duties under Chapter XII Cr.P.C. In
cases where the Magistrate finds that the police has not done
its duty of investigating the case at all, or has not done it
satisfactorily, he can issue a direction to the police to do the
investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation
under Section 156(3) is an independent power, and does not
affect the power of the investigating officer to further
investigate the case even after submission of his report vide
Section 173(8). Hence the Magistrate can order re-opening of
the investigation even after the police submits the final report,
vide State of Bihar vs. J.A.C. Saldanna AIR 1980 SC 326
(para 19).
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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.
18. It is well-settled that when a power is given to an authority
to do something it includes such incidental or implied powers
which would ensure the proper doing of that thing. In other
words, when any power is expressly granted by the statute,
there is impliedly included in the grant, even without special
mention, every power and every control the denial of which
would render the grant itself ineffective. Thus where an Act
confers jurisdiction it impliedly also grants the power of doing
all such acts or employ such means as are essentially necessary
for its execution"
xxxxxxx
"24. In view of the abovementioned 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 police station
concerned 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
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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 police officers
concerned, and if that is of no avail, by approaching the
Magistrate concerned 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 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 police officers concerned , 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.
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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."
16. In the case of Aleque Padamsee (supra), the Hon'ble Supreme
Court, after referring to Sections 154 and 156 of the Cr.P.C., observed as
follows :
"6. "4. When the information is laid with the police, but no
action in that behalf is taken, the complainant (can under
Section 190 read with Section 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 Section 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
(Regd.) v. Union of India [(1996) 11 SCC 582] para 4. It
was specifically observed that a writ petition in such cases is
not to be entertained.
The above position was again highlighted in Gangadhar
Janardan Mhatre v. State of Maharashtra [(2004) 7 SCC 768],
Minu Kumari and Another v. State of Bihar and Others
[(2006) 4 SCC 359] and Hari Singh v. State of U.P. (2006
(5) SCC 733).
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7. Whenever any information is received by the police about
the alleged commission of offence which is a 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 re-iterated in Gangadhar'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), Gangadhar's case
(supra), Hari Singh's case (supra), Minu Kumari'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 re- iterated in Lallan Chaudhary
and Ors. V. State of Bihar (AIR 2006 SC 3376). The course
available, when the police does not carry out the statutory
requirements under Section 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 Sections 190 read
with Section 200 of the Code. It appears that in the present
case initially the case was tagged by order dated 24.2.2003
with WP(C) No.530/2002 and WP (C) No.221/2002.
Subsequently, these writ petitions were de-linked from the
aforesaid writ petitions."
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17. It is relevant that in the aforesaid case, the Hon'ble Supreme
Court specifically directed that if any person is aggrieved by inaction on the
part of the police official in registering FIR, the modalities contained in
Section 190 read with Section 200 of Cr.P.C. are to be adopted and
observed.
18. The aforesaid position of law laid down by the Hon'ble
Supreme Court in the said judgments, sufficiently indicates that when there
is grievance on the part of a person that the police authorities have failed in
their duty, remedy of approaching a Magistrate under Section 156(3) of
Cr.P.C. or invoking Sections 190 and 200 thereof, is certainly available. As
noted above, despite these remedies being available, the writ Court can, in a
given set of circumstances, entertain a writ petition, when the facts brought
to the notice of the Court are extraordinary in nature. The observations
made by the Hon'ble Supreme Court in Sakiri Vasu's case (supra) and
Aleque Padamsee's case (supra), that when the aggrieved person can
approach a Magistrate under Section 156(3) of the Cr. P.C., why should
writ petitions or petitions under Section 482 of the Cr.P.C. be entertained,
is a question that arises in these two petitions also. If the petitions of this
nature are entertained routinely by the writ Court, the apprehension
expressed in the aforesaid judgment by the Hon'ble Supreme Court that it
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would lead to such persons rushing to the High Courts by filing such
petitions, would indeed come true.
19. We are also of the opinion that reliance placed on behalf of the
petitioners on the judgment of the Kerala High Court in the case of Anil
Kumar (supra), is also misplaced. A perusal of the facts giving rise to the
said case would show that FIR was registered on an order of the Magistrate
under Section 156(3) of the Cr.P.C. The observations made by the Kerala
High Court in the said judgment concerning sections 154 to 173 of the
Cr.P.C. have been read out of context by the learned counsel appearing for
the petitioners.
20. In view of the above, we are of the opinion that at the outset,
we are not satisfied that a case for invoking writ jurisdiction is made out by
the petitioners in these petitions. Therefore, the writ petitions are
dismissed.
21. Needless to say, as indicated above, the petitioners would be at
liberty to invoke the remedies available under the provisions of the Cr.P.C.
for satisfaction of their respective grievances.
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:25.08.2022
(G.A.SANAP, J.) (MANISH PITALE, J.)
18:19 Diwale
