Delhi High Court

Nikhil Mehta & Anr. vs Commissioner Of Police & Ors. on 5 June, 2013

Author: R.V. Easwar

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                             Reserved on: June 03, 2013
%                                           Date of Decision: June 05, 2013


+       W.P.(CRL) No. 710/2013

        NIKHIL MEHTA & ANR.                                 ..... Appellants
                      Through:            Mr. Aman Lekhi, Sr. Advocate with
                                          Mr. Sunil Malhotra and Mr. Rajat
                                          Wadhwa, Advocates.
                      versus

        COMMISSIONER OF POLICE & ORS.                          ... Respondents

                               Through:   Mr. Pawan Sharma, Standing
                                          Counsel for State with Ms. Priyanka
                                          Kapoor, Advocate.
                                          Mr. P.K. Sharma, Standing Counsel
                                          for CBI with Mr. Anil Kumar Singh,
                                          Advocate.
                                          Mr. Saleem Ahmed, ASC.
                                          SI Rajender, P.S. Geeta Colony.


CORAM:
MR. JUSTICE R.V. EASWAR

                                  JUDGMENT

R.V. EASWAR, J.:

1. This writ petition has been filed by two advocates of this Court under

Article 226 of the Constitution of India read with Section 482 of the Cr.P.C.

2. The events giving rise to the filing of the present writ petition are

somewhat gloomy and unfortunate. It would appear that on the intervening

night of 1st and 2nd May, 2013, the petitioners had returned after attending

some function and had parked their car in front of the house of one of the

petitioners in Geeta Colony. They were sitting in the car and talking. At that

time, a police gypsy van came that side and a constable got down from the

van and approached the parked car in which the petitioners were sitting and

apparently wanted to know why they were sitting there at that time. Some

arguments appear to have taken place. The constable pulled out one of the

petitioners from the car and is alleged to have used some force in doing so.

Noticing this, the other petitioner got down from the car. The other constable

sitting in the police van also appears to have used some force in pushing him

towards the police van and in the melee, the gold chain of the petitioner fell

down. It was picked up by one of the police constables, who is alleged not to

have returned the same to the petitioner to whom it belongs. The SHO, who

was also present in the gypsy van, came out and is alleged to have used

unreasonable force on the petitioners. Eventually, both the petitioners were

taken to the Geeta Colony Police Station and were kept there till about 6.00

a.m. in the morning. Some advocates/friends of the petitioners came to the

police station early in the morning and the petitioners were let off after a

warning.

3. On the same day, the petitioner filed a complaint against the SHO and

the police personnel accompanying him at the time of the incident and it was

requested that the FIR be registered and the matter be investigated and the

police officers concerned be suspended. A CD containing the CCTV footage

depicting the incident was enclosed to the complaint. No action appear to

have been taken by the police till now.

4. The petitioners are agitated over the police action which, according to

them, is highly objectionable inasmuch as they had used undue and

unreasonable force on the petitioners and had even beaten them while putting

them into the police van. It is also stated by the petitioners that the S.H.O.,

who also got down from the police van and supported the action of the

constables, was under the influence of liquor. They have accordingly filed the

present writ petition seeking protection for the petitioners and their family

members from the SHO and also for taking appropriate action against him and

for directing the investigation to be handed over to the Central Bureau of

Investigation. A prayer has also been made for compensating the petitioners

and for ordering an inquiry under the control and supervision of the District

Judge, East, to fix the responsibility for the delinquent acts of the respondent

No.2 (SHO) and his subordinates.

5. On 03.05.2013, this Court (Sunil Gaur, J.) directed the DCP (East

District) to conduct an inquiry into the complaint of the petitioner and submit

a report within two weeks. In the meantime, the DCP was directed to ensure

that necessary protection was provided to the petitioners. The reports were

filed, as directed. The petitioners thereafter wanted to file their response to

the status report as well as to the inquiry report which was filed by the

respondents. Time was granted. Accordingly, the petitioners have filed their

short response.

6. I have heard the learned senior counsel for the petitioners as well as the

learned standing counsel for the State at length. It is certainly unfortunate that

an incident of this type had taken place. I have also gone through the status

report and the inquiry report on which the status report was based. I have also

perused the complaint dated 02.05.2013 filed by the petitioners with the DCP,

East District, Patpatganj, Delhi.

7. The learned counsel for the petitioners took me through the status

report as well as the inquiry report and sought to point out what, according to

him, were crucial contradictions which threw considerable doubts as to the

credibility of the status report. He complained that the status report as also

the inquiry report were efforts to cover up the police excess and that there was

no proper examination into the allegation of the petitioners that one of the

constables had picked up the gold chain belonging to one of the petitioners

and did not return it, and thus, committed theft.

8. It is contended that the reference to the MLCs in which the doctor at

S.D.N. Hospital, Shahdra, expressed the opinion that the petitioners "smelled

of alcohol" was totally irrelevant and that the medical report was obtained

only to defame the petitioners and that there was no allegation by the police

that the petitioners were guilty of drunken driving. It was further prayed that

strict action should be directed to be taken against the policemen including the

SHO of the Geeta Colony Police Station and that the F.I.R filed by the

petitioners should be directed to be registered and investigated.

9. The learned standing counsel for the State, on the other hand,

submitted that if the petitioners felt aggrieved by the status report/inquiry

report or with the alleged reluctance of the police to register the F.I.R., the

appropriate remedy available to them was to approach the Superintendent of

Police under Section 154(3) of the Cr.P.C. and if that is not effective, to

approach the Magistrate under Section 156(3) of the Cr.P.C. and request him

to direct an investigation into the incident. He relied on the judgment of the

Supreme Court in Sakiri Vasu vs. State of U.P. and Ors., AIR 2008 SC 907,

in which it has been held that one should not rush to the High Court to file a

writ or a petition under Section 482 of the Cr.P.C without exhausting the

alternative remedies available firstly, under Section 154(3) and, secondly,

under Section 156(3) of the Cr.P.C. He contended that the petitioners should

be directed to avail of these remedies first.

10. On a careful consideration of the rival submissions, I am of the view

that though there might be circumstances justifying the apprehensions of the

petitioners due to the conduct of the police during the incident, the proper

remedy for them, as held in the judgment cited above, is to first approach the

Superintendent of Police under Section 154(3) of the Cr.P.C; if that is not

effective, the petitioners then have the right to file an application before the

Magistrate under Section 156(3) of the Cr.P.C., under which the Magistrate

can direct the FIR filed by the petitioners to be registered and can also direct a

proper investigation into the incident to be made, if the petitioners feel that no

proper investigation was being made. I direct the petitioners accordingly.

They may either approach the Superintendent of Police under section 154(3)

or the Magistrate under section 156(3) of the Cr.P.C.

11. In Sakiri Vasu (supra), the Supreme Court has also deprecated the

practice of rushing to the High Court with the grievance that the F.I.R. was

not being registered at the police station or a proper investigation was not

being done by the police. The Court discouraged the practice of rushing to

the Court with a prayer that the case should be investigated by the CBI.

According to the Supreme Court, that can be done only in rare and

exceptional cases, lest the CBI be flooded with a large number of cases

making it impossible for them to properly investigate into the cases.

12. The following observations of the Supreme Court are relevant to the

present case:-

"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 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 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.

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."

13. The learned senior counsel expressed the apprehension that such a

course - of approaching the Superintendant of Police under Section 154 (3) or

the Magistrate under Section 156(3) - would be nothing but making an appeal

from Caesar to Caesar and cannot amount to an efficacious alternative

remedy. While this apprehension may to some extent carry weight in so far

as Section 154(3) is concerned, I do not see how the procedure envisaged by

Section 156(3) of the Cr.P.C. can also be branded as an ineffective remedy.

The observations of the Supreme Court in the cited judgment regarding the

nature of the powers of the Magistrate under Section 156(3) show that those

powers are vast. The Supreme Court has observed that even if the Magistrate

does not say so expressly, it is the duty of the officer-in-charge of the police

station to register the FIR. The Magistrate can also monitor the investigation