Kerala High Court

Jude Joseph vs Director General Of Police on 8 June, 2021

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                      THE HONOURABLE MR.JUSTICE V.G.ARUN
       TUESDAY, THE 8TH DAY OF JUNE 2021 / 18TH JYAISHTA, 1943
                             WP(C) NO. 1788 OF 2021
PETITIONER/S:

                  JUDE JOSEPH
                  AGED 55 YEARS
                  S/O BENEDICT.P.PEREIA, MINI BHAVAN, TC, 9/1797,
                  PATTANIKUNNU LANE, SASTHAMANGALAM,
                  THIRUVANANTHAPURAM-695 010.
                  BY ADV M.R.SARIN


RESPONDENT/S:

       1          DIRECTOR GENERAL OF POLICE
                  POLICE HEADQUARTERS, VAZHUTHACAUD,
                  THIRUVANANTHAPURAM-695 010.
       2          STATION HOUSE OFFICER,
                  FORT POLICE STATION, ATTAKULANGARA, TRIVANDRUM-695
                  023.
                  BY ADV SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER

THIS       WRIT   PETITION   (CIVIL)    HAVING   COME   UP   FOR   ADMISSION   ON

23.02.2021, THE COURT ON 08.06.2021 THE SAME DAY DELIVERED THE

FOLLOWING:
 w.p.(c) No.1788     of 2021
                                2




                           JUDGMENT

Dated this the 8th day of June, 2021

The writ petition is filed, aggrieved by the

failure to register FIR and conduct investigation

into the allegations raised in Exts.P1 and P2

complaints. The petitioner is working as Vehicle

Supervisor at the Vizhinjam Depot of the KSRTC.

The incumbent Managing Director of the KSRTC

unearthed a scam involving a highly placed

official of the Corporation. It was reported that

in the internal audit of the Corporations'

accounts for the period 2012-2015, grave financial

irregularities and misappropriation by the then

Accounts Manager, K.M.Sreekumar had been

unearthed. Taking cue from that revelation, the

petitioner, who claims to have been agitating the w.p.(c) No.1788 of 2021

issue of corruption on his own, lodged Exts.P1 and

P2 complaints alleging that, along with

Sri.K.M.Sreekumar, the then Executive Director

(Vigilance) Sri. Sharad Mohammed and certain other

officials were also involved in the

misappropriation of public money. The Police

having refused to register crime based on the

complaints, the petitioner prays for a direction

to the respondents to consider and dispose of

Exts.P1 and P2 by conducting proper investigation.

2. Heard Sri.M.R.Sarin Panicker, learned

Counsel for the petitioner and Sri.Suman

Chakravarthy, learned Senior Public Prosecutor.

3. Learned Counsel for the petitioner drew

attention to the mandatory terms in which Section

154 of Cr.P.C is phrased and placed strong

reliance on the Constitution Bench decision of the

Apex Court in Lalita Kumari v State of U.P [(2014) w.p.(c) No.1788 of 2021

2 SCC 1], to contend that the Police is bound to

offence/s is brought to its notice.

4. Per contra, the learned Public Prosecutor,

relying on the decisions of the Apex Court in

Aleque Padamsee v. Union of India, [(2007) 6 SCC

171], Sakiri Vasu v. State of U.P., (2008) 2 SCC

409 and Sudhir Bhaskarrao Tambe v. Hemant Yashwant

Dhage, (2016) 6 SCC 277, contended that the

obligation of the police to register FIR cannot be

enforced by straightaway rushing to the High Court

and seeking the issuance of a writ of mandamus. It

was submitted that the Managing Director of the

corporation having raised the allegation of

misappropriation, the matter will definitely be

investigated and that interlopers like the

petitioner should not be permitted to meddle with

the investigation. It was contended that in Lalita w.p.(c) No.1788 of 2021

Kumari (supra), the question whether a writ of

mandamus could be issued to register an FIR, de

hors the alternative remedies under Sections 36,

156(3) and 200 of Cr.P.C, had not arisen for

consideration. To buttress this argument, reliance

is placed on the Division Bench decision in

Fr.Sebastian Vadakkumpadan V Shine Varghese and

others (2018 (3) KHC 590).

5. In reply, learned Counsel for the

petitioner submitted that the decisions cited by

the Public Prosecutor does not hold good in the

light of the authoritative pronoucement in Lalita

Kumari and that the distinction drawn by the

Division Bench in Fr.Sebastian Vadakkumpadan is

legally unsustainable. It is submitted that

pending the writ petition, the petitioner had been

issued with a notice under Section 160 Cr.PC,

pursuant to which he appeared before the second w.p.(c) No.1788 of 2021

respondent and gave Ext.P4 statement. According to

the learned Counsel, having recorded the

petitioner's statement, the second respondent is

bound to register FIR and commence investigation.

6. Learned Public Prosecutor countered this

argument and submitted by pointing out that, as

per the instructions received, the statement given

by the petitioner is vague and is based on

surmises and newspaper reports alone.

7. The legal obligation cast on the Police to

commission of cognisable offence/s is no longer

res integra in the light of the declaration of law

in Lalita Kumari. Therein, after threadbare

scrutiny of the relevant provisions and careful

consideration of precedents, the Apex Court

concluded as under;

"120. In view of the aforesaid discussion, w.p.(c) No.1788 of 2021

we hold:

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. 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 w.p.(c) No.1788 of 2021

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

(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."

8. On the question of invocation of writ

jurisdiction for directing the police to register

FIR, the Honourable Supreme Court has repeatedly w.p.(c) No.1788 of 2021

held that the aggrieved complainant should resort

to the remedies provided under the Code and

cannot, straight away, invoke the writ

jurisdiction. In Aleque Padamsee (supra), after due

deliberation of this issue, the following

directions were issued;

"(1) 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 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 Government concerned to deal with the prayer. The Government concerned would do well to deal with the matter within three months from the date of receipt of this order."

The legal position was reiterated in Sakiri Vasu

(supra) in the following words;

"24. In view of the abovementioned legal position, we are of the view that although w.p.(c) No.1788 of 2021

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 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 alternating remedy, first 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)."

9. Later, in Sudhir Bhaskarrao Tambe (supra),

the Apex Court considered the consequence of

entertaining writ petitions seeking registration w.p.(c) No.1788 of 2021

of FIR and expressed the following opinion;

"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 alternate 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."

10. The contention of the learned Counsel for

the petitioner is that the aforementioned

decisions are no longer good law in view of the

exposition in Lalita Kumari. As a matter of fact,

in Fr.Sebastian Vadakkumpadan, the Division Bench

has dealt with the very same contention by

formulating the following question;

"Does the Supreme Court in Lalita Kumari's case do away with the statutory remedies and instead, take a straight recourse to judicial review?"

 w.p.(c) No.1788     of 2021




After     indepth     analysis        of   the     judgment,     the

Division Bench came to the conclusion that Lalita

Kumari does not obliterate the alternative

statutory remedies available to the aggrieved

complainant. I am in respectful agreement with the

above finding. In fact, the following observation

at paragraph 6 of Lalitha Kumari itself clarifies

the position;

"6. Therefore, the only question before this Constitution Bench relates to the interpretation of Section 154 of the Code and incidentally to consider Sections 156 and 157 also."

11. It is pertinent to note that, going by the

finding at paragraph 120.6 of Lalita Kumari, the

FIR in corruption cases need be registered only

after conducting preliminary enquiry. The specific

case of the petitioner being that the persons

named in his complaint are guilty of the offences

under Sections 13(1)(c) & (d) of the Prevention of w.p.(c) No.1788 of 2021

Corruption Act, 1988, Lalita Kumari is of no help

to him. The petitioner's failure to implead the

persons against whom grave allegations are raised,

is yet another factor which deters me from

entertaining the writ petition.

The writ petition is dismissed for the

aforementioned reasons.

Sd/-

V.G.ARUN JUDGE Scl/ w.p.(c) No.1788 of 2021

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF COMPLAINT FILED BEFORE THE 1ST RESPONDENT ON 18.1.2021 EXHIBIT P2 THE TRUE COPY OF THE COMPLAINT FILED BEFORE THE 2ND RESPONDENT ON 18.1.2021 EXHIBIT P3 THE TRUE COPY OF THE LEGAL NOTICE SENT BY THE PETITIONER HEREIN TO K.M SREEKUMAR KSRTC OFFICE DATED 27.12.2019 EXHIBIT P4 THE TRUE COPY OF THE STATEMENT OF THE PETITIONER RECORDED BY SUB INSPECTOR OF POLICE FORT POLICE STATION DATED 1/2/2021