Dismissed

P.L.Jacob, v. the Union of India

Kerala HC17 Mar 2021WP(C)/3191/2021

Case brief

AI extract

What is this about?

A public interest petition sought CBI and Enforcement Directorate enquiries into alleged bar-licensing bribes. The Court refused mandamus and dismissed the petition, holding that statutory criminal remedies remained available and that the pleadings and material did not satisfy the requirements for the requested intervention or public interest litigation.

What the court decided

AI extract

P.L.Jacob, Vs the Union of India — Corruption | Kerala HC (2021)

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WP(C).No.3191 OF 2021(S) -1-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942

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WP(C).No.3191 OF 2021(S)

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PETITIONER/S:

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P.L.JACOB, AGED 57 YEARS S/O.LONAPPAN, PADINJAKKARA, KUTTIKADU P.O., CHALAKKUDY, THRISSUR -680 724.

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BY ADVS. SRI.V.R.GOPU SHRI.J.NARAYANA PILLAI SMT.URMILA.M.G

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RESPONDENT/S:

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1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY, THE DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, CENTRAL SECRETARIAT, NEW DELHI - 110 001.

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2 THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVNANTHAPURAM - 695 001.

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3 THE SECRETARY OF THE MINISTRY OF FINANCE CENTRAL SECRETARIAT, NEW DELHI - 110 001.

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4 THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION HEAD QUARTERS NEW DELHI - 110 001.

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5 THE DIRECTOR, THE ENFORCEMENT DIRECTORATE LOKNAIK BHAVAN, 6TH FLOOR,NEW DELHI - 110 003.

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6 THE DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 010.

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7 BIJU RAMESH S/O.LATE G.RAMESHAN, SAMTHRIPTHI, TC NO.37/852, EAST FORT, THIRUVANANTHAPURAM - 685 023.

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8 RAMESH CHENNITHALA LEADER OF OPPOSITION, CANTONMENT HOUSE, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.

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9 V.S.SIVAKUMAR MLA NEYYAR BLOCK 2-B, MLA HOSTEL, VIKAS BHAVAN, P.O., THIRUVANANTHAPURAM - 695 033.

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10 K.BABU EX MLA KANNUPARAMBATHU, SANSKRIT COLLEGE ROAD, THRIPUNITHURA, PIN - 682 301.

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11 JOSE K.MANI EX MP KARINGOZHACKAL, VELLAPAD, PALA P.O., KOTTAYAM - 686 575.

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R1, R3, R5 BY SRI.JAGADEESH LAKSHMAN, CGC

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OTHER PRESENT:

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SRI. P.VIJAYAKUMAR,ASG FOR R1, R3, R4 AND R5. SRI.TEK CHAND SR GP FOR R2 AND R6

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

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Dated this the 17^th day of March, 2021

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S. Manikumar, C. J.

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Instant public interest writ petition is filed seeking for the following reliefs:

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(i) Issue a writ in the nature of mandamus commanding the 1^st and 4^th respondents to conduct an enquiry into Exhibits P-8 complaint regarding the illegal gratification received by the respondents No. 8 to 11 and abetted by 7^th respondent based on revelation made by the 7^th respondent.

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(ii) Issue a writ in the nature of mandamus commanding the 3^rd and 5^th respondents to conduct enquiry by the Enforcement Directorate into the allegations about illegal gratification received by the respondents 8 to 11 and abetted by 7^th respondent based on revelation made by the 7^th respondent.

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Short facts leading to the filing of the writ petition are as

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hereunder:-

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According to the petitioner, Sri. Biju Ramesh, the 7^th respondent,

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who was the Working President of Kerala Bar Hotel Association (KBHA), had revealed that, during the mid of October, 2014, the then State Finance Minister, demanded a bribe of Rupees five Crore from the office bearers of the KBHA, and accepted Rupees one Crore on an assurance that, 418 bars closed by the Government, as part of phased prohibition, would be reopened. Consequently, an FIR had been filed against the then State Finance Minister in the Vigilance Court, after a quick verification by Vigilance Department. In March 2015, the 7^th respondent further alleged that, Sri. K. Babu, the then State Excise Minister, the 10^th respondent, was also given Rs. 1 Crore as bribe, in the same scandal, in order to get the liquor licence renewed, and to reduce the annual licence fee from Rupees Thirty Lakhs to Twenty Lakhs.

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Thereupon, the Vigilance & Anti-Corruption Bureau (VACB), held a quick verification probe against the Excise Minister, and later closed the bribery probe on the basis of Quick Verification Report, which had found no prima facie case against him. While so, the Vigilance & Anti Corruption Bureau, which probed the case of the then State Finance Minister, stated in its report that there was no evidence to charge sheet the Minister. However, the Vigilance and

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Special Court rejected the Vigilance & Anti-Corruption Bureau's report, seeking closure of the bar bribery charges, and ordered a fresh probe, which was subsequently upheld by this Court.

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Petitioner has submitted that, in the wake of the above mentioned incidents, resignation was tendered by the then Finance Minister on 10.11.2015, and on the very next day, the 7^th respondent came with an admission before the prominent media that, Rupees One Crore was paid by him personally to the then State Excise Minister, the 10^th respondent, for getting the bar licence fee reduced. The 7^th respondent further stated that he went to office of the then State Excise Minister at the Secretariat, to hand over the money, in two installments of Rupees fifty Lakhs each. But the Government was also reluctant to conduct a proper enquiry on the allegations and abruptly stopped the investigation, as there was no evidence for the allegations.

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Petitioner has also submitted that, recently, the 7^th respondent openly declared that he had given Rupees two Crores to the KPCC office and the 10^th respondent distributed to other persons. The 7^th respondent through visual and print media publicly revealed that he stood with his earlier allegations and he had given Rs. one Crore to the

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then Home Minister Sri Ramesh Chennithala, the 8^th respondent, Rs. 25 Lakhs to the then Health Minister Sri. V. S. Sivakumar, the 9^th respondent, and 50 Lakhs to the then Excise Minister Sri. K. Babu, the 10^th respondent, also 7^th respondent said that the 11^th respondent, son of late K. M. Mani, had offered Rs.10 Crores to withdraw his allegation against late K. M. Mani. Even though 7^th respondent had earlier publicly claimed that he had bribed to prominent Ministers of UDF Government, no action was taken against him or any other persons. Now, again the 7^th respondent has come forward and openly revealed about the commission of cognizable offences. But State Investigation Agencies are reluctant to conduct proper enquiry into the above matter.

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Petitioner has further submitted that, answering to Ext. P10 application filed under the Right to Information Act, 2005, in Ext. P11 dated 13.01.2021, the Deputy Police Superintendent, Vigilance and Anti Corruption Bureau has stated that, regarding the crime registered and its present status against respondent Nos. 8 to 10, based on the allegations of bribe made by 7^th respondent, that a letter has been sent seeking permission from the Government, for conducting the preliminary investigation on the mentioned subject. It is also informed

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that no Vigilance case has been registered against Sri. Jose K. Mani. According to the petitioner, it is crystal clear that the State Government issued direction to conduct Vigilance enquiry regarding the above allegation only because of their political mileage against opposite parties and not with a bonafide intention to conduct a proper enquiry into the allegation.

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It is the further submission of the petitioner that, again the 7^th respondent has conducted a Press Conference, accusing the present Chief Minister of stopping dead the anti-corruption investigation against former Finance Minister late K. M. Mani. He also accused the leader of the opposition, the 8^th respondent, of accepting the bribe of Rs. 1 Crore from the Kerala Bar Hotel Association, to roll back a proposed bar licence fee hike during the previous Oomman Chandy Government. The 7^th respondent said the present Chief Minister had urged him not to backtrack on his complaint that KBHA had bribed K. M. Mani, to expedite the renewal of 418 bar licenses the previous UDF Government had annulled, on the ground that the hotels did not meet the minimum 2 star standard. However, the present Chief Minister, in 2018, abruptly reversed his position, after he met late K.

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M. Mani for breakfast at his residence. Thereafter, the Chief Minister ordered the investigation halted.

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The petitioner has further submitted that, it is clear that LDF and UDF Governments are trying to cover up the corruption of the other, when they came to power alternative. Therefore, only an enquiry by the Central Bureau of Investigation and the Enforcement Directorate into the scandal will reveal the allegation of corruption against the respondents Nos. 8 to 11, abetted by the 7^th respondent

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On the above pleadings, petitioner has raised the following

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grounds:-

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A. Petitioner is aggrieved by arbitrary and illegal action of respondents Nos. 1 to 5, in not conducting enquiry on Ext. P8 complaint filed by him, regarding rampant corruption revealed by the 7^th respondent, openly through visual and print media.

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B. There is a prima facie case to register a crime against respondent Nos. 8 to 11, since 7^th respondent revealed twice that, respondents Nos. 8 to 10 had received illegal

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gratification from the 7^th respondent, and thereby respondents 8 to 10 committed offence under Section 7 of the Prevention of Corruption (PC) Act. The 7^th respondent also revealed that the 11^th respondent had offered Rs.10 Crores for withdrawing the allegations against his father, the then Finance Minister. The 7^th respondent had abetted the offence of accepting illegal gratification by the public servant, punishable under Section 7 of the PC Act, and thereby committed an offence punishable under Section 12 of the PC Act and offences under Prevention of Money Laundering Act. The 7^th respondent clearly stated that he had given Rs. 2 Crores to 10^th respondent and the 10^th respondent distributed the money to respondent Nos. 8 to 10. According to 7^th respondent, the illegal gratification was given to the then State Excise Minister, 10^th respondent, for obtaining some illegal favours like renewing like liquor licence, and for reducing annual licence fee.

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C. Refusal of 6^th respondent to register FIR, despite to the disclosure of cognizable offence as contemplated by Ext. P7 complaint filed by the petitioner, amounts to serious dereliction of duty, and flagrant violation of fundamental

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principles of law and justice.

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D. The 7^th respondent openly declared that he had given Rupees

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two Crores to the KPCC office and the 10^th respondent distributed to other persons. The 7^th respondent through visual and print media publicly revealed that he stood with his earlier allegations and he had given Rs. one Crore to the 8^th respondent, Rs. 25 Lakhs to the 9^th respondent and 50 Lakhs to the 10^th respondent, also 7^th respondent said that the 11^th respondent, son of late K. M. Mani, had offered Rs. 10 Crores to withdraw his allegation against late K. M. Mani. Even though 7^th respondent had earlier publicly claimed that he had bribed to prominent ministers of UDF Government, no action was taken against him or any other persons. Now, again the 7^th respondent has come forward and openly revealed about commission of cognizable offences. But State Investigation Agencies are reluctant to conduct proper enquiry into the above matter. Therefore CBI enquiry and other enquiries by Central Government agencies are necessary against respondents Nos. 7 to 11 and other persons involved into aforesaid crime to come out the truth before the public.

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E. It is further submitted that in Ext. P11 answering to Ext. P10 application filed under Right to Information Act, 2005, the Deputy Police Superintendent, Vigilance and Anti-Corruption Bureau has stated regarding the crime registered and its present status against respondent Nos. 8 to 10, based on the allegations of bribe made by 7^th respondent during the period October, 2020, that letter has been sent seeking permission from the Government, for conducting the preliminary investigation on the mentioned subject. It is also informed that no Vigilance case has been registered against Sri. Jose. K. Mani. Again the 7^th respondent conducted a Press Conference accusing the present Chief Minister of stopping dead the anticorruption investigation against former Finance Minister Late K. M. Mani. He also accused the leader of the opposition, the 8^th respondent, of accepting the bribe of Rs.1 Crore from the Kerala Bar Hotel Association, to roll back a proposed bar licence fee hike during the previous Oomman Chandy Government. The 7^th respondent said that the present Chief Minister had urged him not to backtrack on his complaint that the KBHA had bribe K. M. Mani to expedite the renewal of

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418 bar licenses the previous UDF Government, had annulled on the ground that the hotels did not meet the minimum 2 star standard. However, the present Chief Minister in 2018 abruptly reversed his position after he met late K. M. Mani for breakfast at his residence. Thereafter, the Chief Minister ordered the investigation halted. It is clear that the LDF and UDF Governments are trying to cover up the corruption of the other when they came to power alternative. Therefore, only an enquiry by the Central Bureau of Investigation and the Enforcement Directorate into the scandal will reveal the allegation of corruption against the respondents Nos. 8 to 11, abetted by the 7^th respondent.

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F. Where the police fail to exercise its statutory power of investigation as contemplated by the Code of Criminal Procedure, the party aggrieved can approach this court under Article 226 of the Constitution for necessary directions to secure the ends of justice.

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Narrating the facts, Mr. V. R. Gopu, learned counsel for the

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petitioner contended that, the Code of Criminal Procedure is the only

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law which provides for registration of FIR and investigation, and his submission is to the fundamental aspect of setting the criminal law in motion, i.e. by registration of FIR, and not for monitoring, as the police has got a sovereign duty, so also the Court to ensure registration of an FIR.

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He also raised a question that it is for the learned Senior Government Pleader appearing for the State, to answer as to why FIR has not been registered in spite of the Ext. P7 complaint lodged by the petitioner way back in October, 2020.

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Relying on the decision of the Hon'ble Supreme Court in Lalitha Kumari v. Government of Uttar Pradesh reported in (2014) 2 SCC 1, learned counsel for the petitioner submitted that, registration of FIR is mandated under Sections 154, 155, 156 and 157 of the Cr.P.C. He further contended that despite submission of a complaint, not even a preliminary enquiry is conducted.

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According to Sri. V. Tekchand, learned Senior Government Pleader, the averments are bereft of any materials. He further submitted that, the petitioner has solely relied on the allegations made by the 7^th respondent in the print and electronic media, and sought for

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registration of FIR. He submitted that, no document supporting the allegation of the 7^th respondent, made in the print and electronic media, has been filed along with the statement of facts submitted by the petitioner, and there is absolutely no material or evidence alleging involvement of respondents 8 to 11, mentioned in the statement of facts.

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According to the learned Senior Government Pleader, the allegations are vague and general, solely based on the statement of the 7^th respondent, said to have been made. Placing reliance on the decision of the Hon'ble Apex Court in Laxmibai Kshetriya v. Chand Behari Kapoor and Ors. reported in (1998) 7 SCC 469, learned Senior Government Pleader submitted that the writ petition should not be entertained without proper pleadings and substantive material on record.

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Learned Senior Government Pleader further submitted that, for a writ of mandamus to be entertained, it is fundamental that there must be a right, a demand, and consequently, failure of duty, by the authorities. According to him, the foundation of the petitioner's case is only the statement of the 7^th respondent.

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Relying on the decision of this Court in Rajasthan State Industrial Development and Investment Corporation and Another

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v. Diamond and Gem Development Corporation Ltd. and Another

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[2013 KHC 4116], learned Senior Government Pleader submitted that, there must be a right under any Statute, a demand and refusal warranting exercise under Article 226 of the Constitution of India. It is further submitted that the writ court must take every effort to ensure from the averments, as to whether there exists proper pleadings.

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Referring to prayer No.1 in the writ petition, learned Senior Government Pleader submitted that, petitioner has sought for a mandamus, commanding the 1^st and 4^th respondents to conduct an enquiry into Ext. P8 complaint, regarding the illegal gratification received by the respondents No. 8 to 11, abetted by 7^th respondent, based on the alleged revelation by the 7^th respondent, and the same cannot be ordered in a writ petition.

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On the parameters required to be satisfied for a CBI investigation, learned Senior Government Pleader relied on the decision in Kunga Nima Lepcha and Ors. v. State of Sikkim and Ors. reported in (2010) 4 SCC 513. That apart, reliance has been

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made to the decision of the Hon'ble Apex Court in Common Cause (A Registered Society) and Ors. v. Union of India (UOI) and Ors. [(2017) 11 SCC 731] to substantiate his contention that a PIL, on the averments set out in the statement of facts, is liable to be dismissed.

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Learned Senior Government Pleader further submitted that, even taking it for granted that a complaint has been filed before the police, but not registered, writ of mandamus is not the appropriate remedy and the issue, as to whether the provisions under the Cr.P.C. have to be followed or not, is answered by the Hon'ble Apex Court in Sakiri Vasu v. State of U.P. and Ors. [(2008) 2 SCC 409], wherein it is held that writ petition under Article 226 of the Constitution of India is not the appropriate remedy.

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Placing reliance on the decision of the Hon'ble Apex Court in the State of West Bengal and Ors. v. The Committee for Protection of Democratic Rights, West Bengal and Ors. [(2010) 3 SCC 571], learned Senior Government Pleader further submitted that, necessary and proper facts are not pleaded and that the instant writ petition is politically motivated, based on the alleged statement of the 7^th respondent. On the above contentions, he submitted that the writ

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petition does not merit any consideration.

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By way of reply, Mr. V. R. Gopu, learned counsel for the petitioner submitted that, the allegations raised by the 7^th respondent are so serious, involving an effective and coordinated investigation, by all the Central Agencies concerned, and therefore, the State Government ought to have registered an FIR and that would have been a bona fide action. Instead, Government have refused to do so. Till date, no FIR has been registered.

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From the prayers extracted above, it could be deduced that in respect of the allegations raised by the 7^th respondent, the petitioner has sought for a direction to the respondents 1 and 4, to conduct an enquiry into Ext. P8 complaint, regarding the illegal gratification received by the respondents 8 and 11, said to have been abetted by 7^th respondent, and in respect of very same allegations, the petitioner has sought for a direction against the respondents 3 and 5, to conduct enquiry by the Enforcement Directorate, into the allegations about illegal gratification received by the respondents 8 to 11, alleged abetted by 7^th respondent.

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The allegation pertains to illegal gratification received by

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respondents 8 to 11. For the above said allegations, petitioner has solely relied on the statement of the 7^th respondent, which is stated to have been made in the print and electronic media. As rightly pointed out by the learned Senior Government Pleader, no document has been produced by the petitioner along with the writ petition to substantiate the same. Even taking it for granted that such a statement was made, the question to be considered is whether that alone is sufficient to direct registration of FIR by the police?

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Earlier in judgment dated 22.07.2020 in W. P. (C) No. 14316 of 2020, on the pleadings, submissions and decisions relied on by the learned counsel, we addressed the following points:-

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(a) Is there any remedy available to the petitioner to ventilate his grievance, when the police does not register an FIR and whether the writ petition is maintainable?

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(b) Whether the petitioner can seek a direction to conduct investigation by CBI or any other Central Agency, as a matter of right?

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(c) Whether the petitioner can seek registration of a crime by the the Director, CBI, or Director of Enforcement Directorate, respondent

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Nos. 4 and 5 respectively?

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(d) Even taking it for granted that the prayers are maintainable

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on the pleadings and materials, whether the petitioner has made out a strong case for issuing any directions as prayed for?

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(e) Whether the petitioner has made out a case for issuance of a writ of mandamus?

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After considering the decisions cited, we ordered thus:-

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“111. Remedy under Article 226 of the Constitution of India is extraordinary. Exercise of power to entertain a writ petition arises if only the person, who alleges inaction on the part of the statutory authorities, has no other alternative and efficacious remedy under the Statute. True, the Hon'ble Apex Court has also held that there is no fetters in entertaining a writ petition under Article 226 of the Constitution of India, whether a person complains of violation of his fundamental or statutory right, but at the same time, it should be borne in mind that if there is an adequate and efficacious remedy available to such person, to vindicate his grievance, then the self imposed restraint on the writ court to exercise the extraordinary jurisdiction shall be applied and such person should be relegated to avail the statutory remedy.

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Merely because allegations are levelled against the

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Hon'ble Chief Minister and others and in as much as the allegations relate to abuse of power, it cannot be contended that the nature and magnitude require issuance of a writ as the only remedy available to the petitioner. However, intricate the magnitude and the nature of the offences alleged, the Code of Criminal Procedure has envisaged a procedure to be followed and, therefore, the same cannot be given a go-by, and a writ petition is not the proper remedy.

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In the light of the decisions of the Hon'ble Supreme Court as well as this Court, and our conclusion that no writ of mandamus can be issued, we do not propose to delve into other rival contentions as to whether, the State Government could have written to the Central Government to include the allegations relating to corruption also.

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As the writ petition itself is not maintainable, there is also no need to go into the issue as to whether, National Investigation Agency while investigating any Scheduled Offence may also investigate any other offence which the accused is alleged to have committed, if the offence is connected with the Scheduled Offence. Therefore, judged from any angle, we are of the view, petitioner has not made out a case for issuance of a writ of mandamus.

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In the result, the writ petition is dismissed. No costs.”

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In Lalitha Kumari (cited supra), relied on by the learned

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counsel for the petitioner, the Hon'ble Supreme Court at paragraphs

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120 & 121 held thus:

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“120. In view of the aforesaid discussion, we hold:

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(i) 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.

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(ii) 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.

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(iii) 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.

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(iv) 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.

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(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but

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only to ascertain whether the information reveals any cognizable offence.

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(vi) 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:

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(a) Matrimonial disputes/family disputes

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(b) Commercial offences

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(d) Corruption cases

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(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.

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The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

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(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed fifteen days generally and in exceptional cases, by giving adequate reasons, six weeks time is provided. The fact of such delay and the causes of it must be reflected in the General Diary entry.

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(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we

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direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

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With the above directions, we dispose of the reference made to us. List all the matters before the appropriate Bench for disposal on merits.”

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In Aleque Padamsee and Others v. Union of India and Others [(2007) 6 SCC 171], petitions therein were filed under Article 32 of the Constitution of India, 1950 (in short the 'Constitution'). The petitioners therein have approached the Court aggrieved by the inaction on the part of the official respondents, in not acting on the report lodged by two persons namely, Sumesh Ramji Jadhav and Suresh Murlidhar Bosle. Their basic grievance is that though commission of offences punishable under the Indian Penal Code, 1860 (in short the 'IPC') was disclosed, the police officials did not register the FIR and, therefore, directions should be given to register the cases and wherever necessary accord sanction in terms of Section 196 of the Code of Criminal Procedure, 1973 (in short the 'Code'). After considering the provisions of the Code of Criminal Procedure, 1973,

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and a catena of decisions, the Hon'ble Supreme court held thus:

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“5. 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 (Reg) through its President v. Union of India and Ors. [(1996) 11 SCC 582]. It was specifically observed that a writ petition in such cases is not to be entertained.

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The above position was again highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra [2004CriLJ4623], Minu Kumari and Anr. v. State of Bihar and Ors. [2006CriLJ2468], and Hari Singh v. State of U.P. [2006CriLJ3283].

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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 AIR2006SC3376 . 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 cas e (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

¶147

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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) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were de-linked from the aforesaid writ petitions.”

¶149

In Sakiri Vasu v. State of U.P. and Ors. [(2008) 2 SCC 409], the Hon'ble Supreme Court considered several issues, inter alia,

¶150

as to whether power under Articles 32 and 136 of the Constitution of India could be invoked, to order investigation by CBI, and whether High Court, in exercise of powers under Article 226 of the Constitution of India and Section 482 of the Cr.P.C, can order investigation, where an alternative remedy under Section 154(3) r/w. Section 36 or Section 156(3) or Section 200 of the Cr.P.C has not been exhausted. The Hon'ble Apex Court has also considered when the powers under Articles 32, 136, and 226 of the Constitution of India can be exercised by ordering investigation by CBI, and the remedies open to an aggrieved person against improper investigation; interference in the process of investigation.

¶151

Facts of the decision in Sakiri Vasu (cited supra), in nutshell

¶152

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are that the finding of Court of Inquiry conducted by the Army that the appellant's son was murdered and not committed suicide, and by filing a writ petition, sought for a CBI investigation. High court rejected the prayer. Addressing the plea, considering the provisions of the Code of Criminal Procedure, and decisions answering the issues 1 and 2, at paragraphs 10 to 28, the Hon'ble Apex Court held thus:

¶154

“10. It has been held by this Court in CBI and Anr. v. Rajesh Gandhi and Anr . (1997 CriLJ 63) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.

¶155

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 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. 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) Cr.P.C. 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,

¶156

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according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.

¶158

Thus in Mohd. Yousuf v. Smt. Afaq Jahan and Anr. [2006 CriLJ 788], this Court observed:

¶159

“The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”

¶160

The same view was taken by this Court in Dilawar Singh v. State of Delhi [2007CriLJ4709] (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such

¶161

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order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C.

¶163

Section 156(3) states:

¶164

“Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.”

¶165

The words `as above mentioned' obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the Police Station.

¶166

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.

¶167

The power of 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 v. A.C. Saldanna [1980CriLJ98].

¶168

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

¶169

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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.

¶171

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 to its execution.

¶172

The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his 'Statutory Construction' (3^rd edn. Page 267):

¶173

“If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission.”

¶174

In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it

¶175

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were specifically written therein.

¶177

An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO, Cannanore v. M.K. Mohammad Kunhi (AIR 1969 SC 430), this Court held that the income tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.

¶178

Similar examples where this Court has affirmed the doctrine of implied powers are Union of India v. Paras Laminates [1990] 186 ITR 722 (SC), Reserve Bank of India v. Peerless General Finance and Investment Company Ltd. [1996] 1 SCR 58, Chief Executive Officer and Vice Chairman Gujarat Maritime Board v. Haji Daud Haji Harun Abu (1996) 11 SCC 23, J.K. Synthetics Ltd. v. Collector of Central Excise 1996 (86) ELT 472(SC), State of Karnataka v. Vishwabharati House Building Co-op Society [2003] 1 SCR 397 etc.

¶179

In Savitri v. Govind Singh Rawat (1986 CriLJ 41), this Court held that the power conferred on the Magistrate under Section 125 Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period.

¶180

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

¶181

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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.

¶183

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).

¶184

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

¶185

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are so many alternative remedies?

¶187

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.

¶188

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.”

¶189

As to whether, proper investigation is done and on

¶190

monitoring, the Hon'ble Apex Court at paragraphs 29 and 30 in Sakiri Vasu (cited supra), ordered thus:-

¶191

“29. In Union of India v. Prakash P. Hinduja and Anr. (2003 CriLJ 3117), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police.

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¶193

However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate).

¶194

It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-incharge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI v. State of Rajasthan and Anr. (2001 CriLJ 968), R.P. Kapur v. S.P. Singh [1961] 2 SCR 143 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar v. A.C. Saldanna (supra).”

¶195

On the aspect as to when the Supreme court and High Court under Articles 136 or 226 of the Constitution can order investigation by CBI, the Hon'ble Apex Court at paragraphs 31 and 33 in Sakiri Vasu (cited supra), ordered thus:

¶196

“31. No doubt the Magistrate cannot order investigation by

¶197

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the CBI vide CBI v. State of Rajasthan and Anr. (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

¶199

In Secretary, Minor Irrigation & Rural Engineering Services U.P. and Ors. v. Sahngoo Ram Arya and Anr. (2002 CriLJ 2942), this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.”

¶200

When there is a law and procedure envisaged under the Code of Criminal Procedure, the question whether the registration of a criminal case under Section 154(1) of the Cr.P.C. ipso facto warrants setting in motion of an investigation in Chapter XII Cr.P.C. is provided by Sections 157(1) proviso, and 157(2) of the Cr.P.C. Section 156(3) Cr.P.C. enjoins a discretionary power on a Magistrate under Section 190 of the Cr.P.C., to order investigation by a Police Officer. At this juncture, we deem it fit to consider what Sections 156(3), 157(1) proviso, and 157(2) of the Cr.P.C state.

¶201

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¶202

“ 156. Police officer' s power to investigate cognizable

case .

(1) xxxxx

(2) xxxxx

(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.”

¶207

157. Procedure for investigation preliminary inquiry .

¶208

(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender;

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Provided that-

¶210

(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;

¶211

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for

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entering on an investigation, he shall not investigate the case.

¶214

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.”

¶215

In this context, this Court deems it fit to consider the decision of the Hon'ble Apex Court in Anandwardhan and Another v. Pandurang and others , reported in (2005) 11 SCC 195, wherein it is held as follows:

¶216

“We do not wish to make any comments about the investigation of the case or the result of the investigation. The law provides that if the police fails to investigate a case arising from a first information report lodged before it disclosing commission of a cognizable offence, it is open to the informant/ complainant to move the Magistrate concerned for appropriate order under Section 156 CrPC, or may file a complaint and obtain appropriate orders from him for issuance of process against the accused for trial. If the grievance of the respondent was that the police was not properly investigating his case, or that the report made by the police was wrong or based on no

¶217

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investigation whatsoever, it was open to him to move the Magistrate concerned. Having failed to do so, he found the novel device of moving the High Court under Article 227 of the Constitution. Such a writ petition should not have been entertained by the High Court when remedy is provided to the aggrieved party under the Code of Criminal Procedure in accordance with the procedure established by law.”

¶219

In Divine Retreat Centre v. State of Kerala and others, reported in AIR 2008 SC 1614, no information was given to the police by any informant, alleging commission of any cognizable offence by the appellant and the persons associated with the appellant institution. It is a peculiar case of its own kind where an anonymous petition was sent directly in the name of a learned Judge of the Kerala High Court, which was suo motu taken up as a proceeding under Section 482 of the Code. The Hon'ble Apex Court considered several issues, including the scope and nature of Section 482 of Cr.P.C, and, at para 42, held thus:

¶220

“42. Even in cases where no action is taken by the police on the information given to them, the informant's remedy lies under Sections 190, 200 Code of Criminal Procedure but a writ petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre v. State of Maharashtra (2004) 7 SCC 768: 2005 SCC (Cri.) 404 held: (SCC pp. 774-75, para 13).

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“13. When the information is laid with the police, but no action in that behalf is 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 enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facies case, instead of issuing process to the accused, he is 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 would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employee's Union (Regd.) v. Union of India (1996) 11 SCC 582: 1997 SCC (Cri) 303. It was specifically observed that a writ petition in such cases is not to be entertained.”

¶223

When the High Court can interfere, in excise of powers under Article 226 of Constitution of India, the Hon'ble Apex Court in Divine Retreat Centre (cited supra), at para 41, held thus:-

¶224

“41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and noncompliance with the

¶225

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provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.”

¶227

It is worthwhile to consider the decision in All India

¶228

Institute of Medical Sciences Employees' Union through its President v. Union of India (UOI) and Ors., reported in 1996 (11) SCC 582, referred to in Divine Retreat Centre (cited Supra), wherein a special leave petition was filed against the order of the Delhi High Court on May 14, 1996 in CWP No. 1946/96 directing institution proceedings against one, Dr. S. K. Kacker, former Director of the All India Institute of Medical Sciences, for the alleged cognizable offence punishable under Section 409, Indian Penal Code. The Hon'ble Division Bench refused to issue mandamus to the police to investigate into the allegations made against the said doctor. The Hon'ble Supreme Court, at paragraphs 3 to 6, held thus:-

¶229

“3. The Code of Criminal Procedure, 1973 (for short, the 'Code') prescribes the procedure to investigate into the cognizable offences defined under the Code. In respect of cognizable offence, Chapter XII of the Code prescribes the procedure: information to the police and their powers to investigate the

¶230

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cognizable offence. Sub-section (1) of Section 154 envisages that "every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant: and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf," On such information being received and reduced to writing, the officer in charge of the police station has been empowered under Section 156 to investigate into the cognizable cases. The procedure for investigation has been given under Section 157 of the Code, the details of which are not material. After conducting the investigation prescribed in the manner envisaged in Chapter XII, charge--sheet shall be submitted to the court having jurisdiction to take cognizance of the offence. Section 173 envisages that: (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report in the form prescribed by the State Government giving details therein. Upon receipt of the report, the Court under Section 190 is empowered to take cognizance of the offence. Under Section 173(8), the investigating officer has power to make further investigation into the offence.

¶232

When the information is laid with the police but no action in that behalf was taken, the complainant is given power

¶233

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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 complain/ evidence recorded prima facie discloses offence, he is empowered to take cognizance of the offence and would issue process to the accused.

¶235

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.

¶236

The special leave petition is accordingly dismissed. It, however, does not preclude the petitioner to follow either of the procedure as indicated above, if so advised and deemed appropriate.”

¶237

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¶238

In Kunga Nima Lepcha and Ors. v. State of Sikkim and

¶239

Ors. (cited supra), a writ petition was instituted by way of Public Interest Litigation under Article 32 of the Constitution of India, the petitioners therein have levelled some allegations against an incumbent, Hon'ble Chief Minister of the State of Sikkim, who was impleaded as respondent No. 2 therein. The crux of the allegations is that he has misused his public office to amass assets, disproportionate to his known sources of income. The petitioners have further alleged that respondent No.2 has misappropriated a large volume of public money at the cost of Government of India and Government of Sikkim. The prayers sought for by the petitioners were as follows:

¶240

“(a) issuance of an appropriate writ in the nature of Mandamus commanding the Director, Central Bureau of Investigation to investigate the awarding of government contracts and/or work orders by the Respondent No. 1 State of Sikkim during the tenure of the Respondent No. 2 as the Chief Minister of the State of Sikkim viz a viz amassing of huge assets and/or wealth by the Respondent No. 2 and his relatives with a direction upon it to submit its report before this Hon'ble Court within a time frame fixed by this Hon'ble Court;

¶241

(b) issuance of an appropriate writ in the nature of mandamus commanding the Director, Central Bureau of Investigation to investigate the matter against the Respondent

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No. 2, his relatives and other guilty officials and take appropriate legal action by way of registration of FIR under the general provisions of law and the provisions of Prevention of Corruption Act, 1988;

¶244

¶245

(d) pass such further order(s) and/or direction(s) as this Hon'ble Court may deem fit and proper.”

¶246

The Hon'ble Apex Court, after considering the above prayers, in Kunga Nima Lepcha (cited supra), held thus:

¶247

“13. However, the remedies evolved by way of writ jurisdiction are of an extraordinary nature. They cannot be granted as a matter of due course to provide redressal in situations where statutory remedies are available. It is quite evident that the onus is on the petitioners to demonstrate a specific violation of any of the fundamental rights in order to seek relief under writ jurisdiction.

¶248

14 . In the present petition, the petitioners have made a rather vague argument that the alleged acts of corruption on part of Shri Pawan Chamling amount to an infringement of Article 14 of the Constitution of India. We do not find any merit in this assertion because the guarantee of “equal protection before the law” or “equality before the law” is violated if there is an unreasonable discrimination between two or more individuals or between two or more classes of persons. Clearly, the alleged acts

¶249

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of misappropriation from the public exchequer cannot be automatically equated with a violation of the guarantee of “equal protection before the law”.

¶251

Furthermore, we must emphasis the fact that the alleged acts can easily come within the ambit of statutory offences such as those of “possession of assets disproportionate to known sources of income” as well as “criminal misconduct” under the Prevention of Corruption Act, 1988. The onus of launching an investigation into such matters is clearly on the investigating agencies such as the State Police, Central Bureau of Investigation (CBI) or the Central Vigilance Commission (CVC) among others. It is not proper for this Court to give directions for initiating such an investigation under its writ jurisdiction.

¶252

While it is true that in the past, the Supreme Court of India as well as the various High Courts have indeed granted remedies relating to investigations in criminal cases, we must make a careful note of the petitioners’ prayer in the present case. In the past, writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing investigations from one investigating agency to another. Such directions have been given when a specific violation of fundamental rights is shown, which could be the consequence of apathy or partiality on the part of investigating agencies among other reasons. In some cases, judicial intervention by way of writ jurisdiction is warranted on account of obstructions to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful

¶253

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interests. In all of these circumstances, the writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. However, it is not viable for a writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation.

¶255

It must also be borne in mind that there are provisions in the Code of Criminal Procedure which empower the courts of first instance to exercise a certain degree of control over ongoing investigations. The scope for intervention by the trial court is hence controlled by statutory provisions and it is not advisable for the writ courts to interfere with criminal investigations in the absence of specific standards for the same.

¶256

Hence, it is our conclusion that the petitioners’ prayer cannot be granted. This Court cannot sit in judgment over whether investigations should be launched against politicians for alleged acts of corruption. The Supreme Court of India functions as a constitutional court as well as the highest appellate court in the country. If the Supreme Court gives direction for prosecution, it would cause serious prejudice to the accused, as the direction of this Court may have far-reaching persuasive effect on the court which may ultimately try the accused. It is always open to the petitioners to approach the investigative agencies directly with the incriminating materials and it is for the investigative agencies to decide on the further course of action. While we can appreciate

¶257

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the general claim that the efforts to uncover the alleged acts of corruption may be obstructed by entrenched interests, in this particular case the petitioners would be well advised to rely on the statutory remedies. It is only on the exhaustion of ordinary remedies that perhaps a proceeding can be brought before a writ court and in any case the High Court of Sikkim would be a far more appropriate forum for examining the allegations made in the present petition.”

¶259

In Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage

¶260

[(2016) 6 SCC 277], by the order impugned therein, the Hon'ble Bombay High Court, at paragraph 9 of its order, changed the Investigating Officer and appointed a Special Investigating Officer, to investigate into the alleged offence. Testing the correctness of the same, an appeal was filed in the Hon'ble Apex Court, following the Sakiri Vasu's case (cited supra) . The Hon'ble Apex Court, at paras 8 to 11, held thus:

¶261

“8. This Court has held in Sakiri Vasu v. State of U.P. and Ors. , reported in AIR 2008 SC 907, that if a person has a grievance that his F.I.R. has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the concerned Magistrate Under Section 156(3), Code of Criminal Procedure. If such an application Under Section

¶262

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¶263

156(3), Code of Criminal Procedure. is made and the Magistrate is, prima facie, satisfied, he can direct the F.I.R. to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the Investigating Officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu's case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. 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 concerned Magistrate Under Section 156(3), Code of Criminal Procedure, 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.

¶264

In view of the settled position in Sakiri Vasu's case (supra), the impugned judgment of the High Court cannot be sustained and is hereby set aside. The concerned Magistrate is directed to ensure proper investigation into the alleged offence Under Section 156(3), Code of Criminal Procedure, and if he deems it necessary, he can also recommend to the S.S.P./S.P. concerned change of the Investigating Officer, so that a proper investigation is done. The Magistrate can also monitor the

¶265

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¶266

investigation, though he cannot himself investigate (as investigation is the job of the police).

¶267

Parties may produce any material they wish before the concerned Magistrate. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.

¶268

The Appeals are allowed in the above terms.”

¶269

Though much reliance has been placed on Lalitha Kumari's

¶270

case (cited supra), for registration of an FIR, in Fr. Sebastian Vadakkumpadan v. Shine Varghese and Ors. (2018 (3) KLT 177), a Hon'ble Division Bench of this Court held that Lalitha Kumari's case (cited supra) is not a precedent as to the procedure to be followed if, FIR is not registered. This Court, observed thus:

¶271

“50. One of the age-old maxims of organic law is that "[w]hat is not judicially presented cannot be judicially considered, decided, or adjudged.

¶272

As seen above, Lalita Kumari concerns the statutory compulsion on the police to register an FIR if they are presented with a written complaint making out a cognizable offence. It does not, at any rate, mandate that the aggrieved complainant could rush to High Court on the police's refusing to register a crime. Much less has it enabled the suitors to ignore the other statutory

¶273

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¶274

safeguards available to them and insist on a public-law remedy-especially a remedy under Art. 226, at that.

¶275

52. In other words, that issue--what are the courses open to a complainant if the police refuse to register an FIR?--has neither been raised nor answered in Lalita Kumari. Granted, sub silentio is an established legal doctrine in ascertaining the precedential value of a decision. But, unless the court left undecided an issue that ought to have been decided, this doctrine has no place.

¶276

53. Once an issue, though present by implication, has not been expressly dealt with and pronounced upon, the judgment on that issue remains sub silentio. Any issue, thus, rendered sub silentio cannot be treated as a precedent.

¶277

The concept of sub silentio has been explained by Salmond on Jurisprudence, 12^th Edn. as follows:

¶278

11.[A] decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of Point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the Court. In such circumstances, although Point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on Point B. Point B is said to pass sub silentio.

¶279

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¶280

In B. Shama Rao v. UT of Pondicherry AIR 1967 SC 1480, the Supreme Court has observed that a decision is binding not because of its conclusions but because of "its ratio and the principles, laid down therein". In Arnit Das (1) v. State of Bihar, (2000) 5 SCC 488 the Supreme Court has further observed that a decision not expressed, not accompanied by reasons, and not based on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. And this is the rule of sub silentio.

¶281

56. Lalitha Kumari, however, had no occasion to consider the issue we have now been confronted with: The alternative statutory remedies available to a complainant after the police's refusing to register an FIR. So we may safely conclude that Lalita Kumari does not obliterate, as it were, the alternative statutory remedies available to the aggrieved complainant.

¶282

71. We have already discussed Lalita Kumari and extracted its holding. We have also held that Lalita Kumari has not dealt with the remedies available to an aggrieved person on whose complaint about a cognizable offence the police have not acted. In fact, Lalita Kumari has only dealt with the issue whether the police could exercise their discretion and indulge in any preliminary enquiry before they register a crime. Therefore, the precedents speaking on a

¶283

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¶284

complainant's alternative remedies have not been set at naught. They still hold the field. That said, we must now examine the precedential position on that issue.

¶285

The writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. The writ court, however, will not initiate an investigation. That function clearly lies in the domain of the executive, and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation. It must also be borne in mind that there are provisions in the Code of Criminal Procedure which empower the courts of the first instance to exercise a certain degree of control over ongoing investigations. So held a threeJudge Bench of the Supreme Court in Kunga Nima Lepcha v. State of Sikkim. (2010) 4 SCC 513.

¶286

76. Clear and compelling are the judicial directions visà-vis an aggrieved person's approaching the High Court. But, disregarding the efficacious alternative-remedies under the Code, the complainants insisted that in Lalitha Kumari, a Constitution Bench has cleared the complainant's path of all statutory hurdles to approach the High Court, straight away.

¶287

76(a). That apart, on facts, Shine's conduct leaves much to be desired. The record reveals that he complained in writing to the police on 15^th January 2018; he filed the writ petition on 16^th January, the next day. In fact, the learned Public Prosecutor maintains that Shine approached the police only on 16^th January,

¶288

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¶289

the complaint bearing the date of 15^th January notwithstanding. Without waiting even for the receipt, the Public Prosecutor further contends, Shine rushed to the Court.

¶290

76(b). Shine, however, counters the Public Prosecutor's assertion. He insists that he had approached the police on 15th January and that they refused to acknowledge his complaint. So Shine would have us view his approaching the Court the next day as perfectly justified--not to be taken amiss. Elementary is the legal principle that for a writ of mandamus to be maintained, the suitor must establish before the Court these: (a) that there existed a right; (b) that it has been infringed or threatened to be infringed; (c) that the person aggrieved complained to an authority; and (d) that the authority concerned refused to act.

¶291

76(c). Here, Shine seemed to have rushed to the Court posthaste, before the ink dried on the paper, as if it were. So, we find it hard to believe that there was proper demand and refusal, the essential elements for a mandamus.

¶292

77. Authoritative as Lalitha Kumari is, it has not disturbed the proposition of law that this Court while exercising its jurisdiction under Article 226 does ensure that the suitor has no other efficacious, alternative remedy. So the precedential value of Aleque Padamsee, All India Institute of Medical Sciences, Gangadhar, Sudhir Bhaskarrao Tambe, Sakiri Vasu, Kunga Nima Lepcha, just to list out a few, remains undisturbed and undiminished.”

¶293

(emphasis supplied)

¶294

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¶295

35. In Sunil Gangadhar Karve v. State of Maharashtra and

¶296

others [(2014) 14 SCC 48], the Hon'ble Apex Court, at para 4, held thus:

¶297

“4. We have noted this submission of Mr Rohatgi. There are, however, two difficulties in his way. Firstly, that if the police officers decline to look into the complaint, the ordinary procedure under the Criminal Procedure Code is available to the complainant as held by a Bench of three Judges of this Court in Aleque Padamsee v. Union of India ( supra ) . Besides, apart from the rights of the complainant, the rights of the accused also have to be safeguarded, and the accused has a right of appeal against any such determination if the complainant chooses to approach the Magistrate concerned. The right of appeal has been held to be a very important right of the accused by this Court in A.R. Antulay v. R.S. Navak (1988) 2 SCC 602.”

¶298

In State of West Bengal and Ors. v. The Committee for Protection of Democratic Rights, West Bengal and Ors. reported in

¶299

(2010) 3 SCC 571, the Hon'ble Apex Court held thus:

¶300

“70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power

¶301

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¶302

under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

¶303

In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. (2002) 5 SCC 521, this Court had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. We respectfully concur with these observations.”

¶304

In Common Cause (A Registered Society) and others v.

¶305

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¶306

Union of India and others reported in (2017 (11) SCC 731, the Hon'ble Supreme Court, while considering the question whether Special Investigation Team should be constituted for investigation into incriminating material seized in raids conducted on a group of companies, at paragraph 283, held thus:

¶307

“ 283. We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books of accounts but on random papers at any given point of time. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. In case we do not insist for all these, the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important

¶308

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¶309

constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily. We find the materials which have been placed on record either in the case of Birla Group or in the case of Sahara Group are not maintained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation.”

¶310

In State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and Others [(2010) 3 SCC 571], a five member Bench of the Hon'ble Apex Court while considering the question as to whether a direction can be issued under Articles 32 and 226 of the Constitution of India by the High Court to investigate a cognizable offence in a State without the consent of the State Government, at paragraph 70, held thus:

¶311

“70. Before parting with the case, we deem it necessary to emphasis that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that

¶312

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¶313

such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”

¶314

In Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Others v. Sahngoo Ram Arya and Anothe r [(2002) 5 SCC 521], the Hon'ble Supreme Court, on consideration of the question as to whether High Court can direct enquiry by CBI under Article 226 of the Constitution, held that the High court must reach a conclusion based on the pleadings and material on record that a prima facie case made out against a person and merely because a party made allegations against a person, High Court cannot direct CBI to investigate as to whether a person committed an offence as alleged or not. Paragraph 6 is relevant to the context and it reads thus:-

¶315

“6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live

¶316

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¶317

without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of “ifs” and “buts” and thought it appropriate that the inquiry should be made by CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause.”

¶318

As rightly contended by the learned Senior Government Pleader, the petitioner has only mentioned about the allegations of the 7^th respondent. There are no details in the statement of facts as to what they are, except stating that respondents 8 to 11 have received illegal gratification. Although the writ petition has been directed to be instituted as a Public Interest Litigation, the averments remain the same.

¶319

In Guruvayur Devaswom Managing Committee & Anr. v. C.K.Rajan & Others reported in (2003) 7 SCC 546, the Hon'ble

¶320

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¶321

Supreme Court has summarised the principles with respect to filing a Public Interest Litigation and they are reproduced:

¶322

“(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.

¶323

The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfil its constitutional promises. [See S.P. Gupta v. Union of India, People's Union for Democratic Rights v. Union of India (1982) 2 SCC 494, Bandhua Mukti Morcha v. Union of India and Others (1984) 3 SCC 161 and Janata Dal v. H.S.Chowdhary (1992) 4 SCC 305)].

¶324

(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-a-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. [See Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1980) 1 SCC 81)]

¶325

(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International

¶326

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¶327

Conventions on Human Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi v. Rani Jethmalani (AIR 1979 SCC 468), it was held:

¶328

"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.” (See also Dwarka Prasad Agarwal (D) By Lrs. and Anr. v. B.D. Agarwal and Ors. (2003) 5 SCALE 138)

¶329

(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378 and BALCO Employees' Union (Regd.) v. Union of India and Others (2002) 2 SCC 333

¶330

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¶331

(v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition.

¶332

(vi) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depends on the nature of the petition as also facts and circumstances of the case. [See Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504 and Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri and others (1986) 1 SCC 100]

¶333

(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi v. Union of India and Others 1989 Supp (1) SCC 251)

¶334

(viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Others (1987) 1 SCC 227).

¶335

(ix) The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct

¶336

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¶337

management of a public institution taken over by such Committee. (See Bandhua Mukti Morchai, Rakesh Chandra Narayan v. State of Bihar (1989) Suppl 1 SCC 644 and A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718). In Sachidanand Panday and Another v. State of West Bengal and others [(1987) 2 SCC 295], this Court held:-

¶338

“61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extent its jurisdiction under all available provisions for remedying the hardships and miseries of the need, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."

¶339

This Court in the unreported judgment dated 30.06.2020 in

¶340

B. Radhakrishna Menon v. State of Kerala and Ors. [W.P.(C)

¶341

No.12109 of 2020], at paragraph 45, held thus:

¶342

“45. Placing reliance on the above decisions, the learned Senior Government Pleader submitted that a public interest writ petition which lacks bona fides, lack of particulars satisfying the requirements of a PIL, deserves to be dismissed with costs. Having regard to decisions considered in Mythri Residents Association v. Secretary, Tripunithura Municipality and Others, [2019 KHC 832] , it has been summarised by the journal

¶343

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¶344

thus:-

¶345

“(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

¶346

(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.

¶347

(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.

¶348

(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

¶349

(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.

¶350

(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

¶351

(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

¶352

(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

¶353

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¶354

(9) The misuse of public interest litigation is a serious matter of concern for the judicial process.

¶355

(10) Both this Court and the High Courts are flooded with litigations and are burdened by arrears.

¶356

(11) Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes.

¶357

(12) This Court has a long list of pending cases where the personal liberty of citizens is involved.

¶358

(13) Those who await trial or the resolution of appeals against orders of conviction have a legitimate expectation of early justice.

¶359

(14) It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda.

¶360

(15) This has spawned an industry of vested interests in litigation.

¶361

(16) There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention.

¶362

(17) Worse still, such petitions pose a grave danger to the credibility of the judicial process.

¶363

(18) This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law.

¶364

(19) This will happen when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to be resolved in a competitive market for goods and services.

¶365

(20) Political rivalries have to be resolved in the great hall

¶366

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¶367

of democracy when the electorate votes its representatives in and out of office.

¶368

(21) Courts resolve disputes about legal rights and entitlements.

¶369

(22) Courts protect the rule of law.

¶370

(23) There is a danger that the judicial process will be reduced to a charade, if disputes beyond the ken of legal parameters occupy the judicial space.”

¶371

In the light of the principles of law laid down by the Hon'ble

¶372

Supreme Court as well as this Court, instant writ petition does not satisfy the requirements of a Public Interest Litigation.

¶373

On the last issues as to whether, the petitioner has made out a strong case for issuance of a writ of mandamus, the learned Senior Government Pleader, in order to substantiate his arguments discussed above, relied on various judgments of the Hon'ble Apex Court, especially to canvass the proposition that, in order to grant the reliefs as sought for by the petitioner, the materials made available and the pleadings made should instill confidence in the Court. In Rajasthan State Industrial Development and Investments Corporation and Another v. Diamond and Gem Development Corporation Ltd. and

¶374

Another [(2013) 5 SCC 470], the Hon'ble Apex Court while considering a question as to the circumstances under which reliefs

¶375

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¶376

can be granted in a writ petition, held that the discretion must be exercised by the Court on the grounds of public policy, public interest and public good, that the writ is equitable in nature and thus, its issuance is governed by equitable principles.

¶377

It was further held that, while granting such a writ, the Court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings and that, in order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be a frivolous, and must be filed in good faith. It was also held that the authority against whom mandamus is issued, should have rejected the demand earlier, and therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. But at the same time it was held that a demand may not be necessary when the same is manifest from the facts of the case.

¶378

In this connection, he has relied on the decision in Rani Lakshmibai Ksheptpriya, Gramin Bank v. Chand Behari Kapoor

¶379

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¶380

and Others [(1998)7 SCC 469] wherein, at paragraph 8, the Hon'ble Apex Court held thus:

¶381

“8. * * * * We, however, are unable to sustain this line of reasoning of the High Court. The writ petitioners not having made any averments alleging resigning of six of the Field Supervisors after being appointed, the Bank had no obligation to give any reply. In the course of hearing, if a contention had been raised and supporting material produced, then the Bank might have been obliged to file the specific reply but no such material appears to have been produced by the writ petitioners before the High Court and in such context, absence of reply by the Bank does not ipso facto establish the contention raised. It is too well settled that the petitioner who approaches the court invoking the extraordinary jurisdiction of the court under Article 226 must fully aver and establish his rights flowing from the bundle of facts thereby requiring the respondent to indicate its stand either by denial or by positive assertions. But in the absence of any averments in the writ petition or even in the rejoinder-affidavit, it is not permissible for a court to arrive at a conclusion on a factual position merely on the basis of submissions made in the course of hearing. The High Court, therefore, in our view committed serious error in coming to the conclusion that there existed vacancies in the post of Field Supervisor on the materials produced before it.”

¶382

In Raj Kumar Soni and Ors. v. State of U.P. and Ors.

¶383

reported in [(2007) 10 SCC 635], the Hon'ble Apex Court, at

¶384

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paragraph (11), held thus:

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“8.......It is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and must make a full and complete disclosure of facts to the Court. Parties are not entitled to choose their own facts to put- forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinize the nature and content of the right alleged to have been violated by the authority.”

¶387

Indeed that Section 39 of the Cr.P.C enables the public to set the criminal law in motion, but if the officer in-charge, fails to register an FIR, the Hon'ble Supreme Court as well as this Court, in the above decisions, have considered whether the only remedy open to the complainant or the first informant or the member of public to approach the High Court under Article 226 of the Constitution of India and that there is no other remedy provided under any other law, and answered that writ is not the remedy.

¶388

It is clear from the above provisions in the Cr.P.C. that if the police did not register a case on the basis of a complaint filed by the complainant, then he has got a remedy in the Code of Criminal

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Procedure, by approaching the jurisdictional Magistrate under Section 156(3) of the Code or even file a private complaint under Section 190 read with Section 200 of the Code, and when a complaint is filed, then the Magistrate has to conduct enquiry under Sections 200 and 202 of the Code, and if the Magistrate is satisfied on the basis of the materials produced before that court that commission of an offence has been prima facie made out, then the Magistrate can take cognizance of the case and issue process to the accused under Section 204 of the Code. If the Magistrate is not satisfied with the materials produced and if he is satisfied that no offence has been made out, then the Magistrate can dismiss the complaint under Section 203 of the Code.

¶391

Even if the Station House Officer commits a mistake in arriving at the conclusion that the allegations are not sufficient to attract the ingredients of commission of a cognizable offence, even this Court cannot invoke the power under Article 226 of the Constitution of India, go into the question as to whether non satisfaction by the Station House Officer is proper or not, to issue a writ of mandamus or other writs directing the Station House Officer to register a crime as it is a matter to be considered by the Magistrate under Section 190 read with Section 200 of the Code, on a complaint

¶392

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¶393

filed by the aggrieved party, on account of the inaction on the part of the police, in not registering case in such cases. If an enquiry has to be conducted for satisfaction regarding the commission of offence, then it is not proper on the part of the High Court to invoke the power under Article 226 of the Constitution of India, and parties must be relegated to resort to their statutory remedy available under the Code in such cases. After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Police also does not register an FIR or no proper investigation is done, the aggrieved person can approach the Magistrate concern under Section 156 (3) of Cr.P.C. Without resorting to the procedure as contemplated in the Cr.P.C, the petitioner has approached this Court under Article 226 of the Constitution of India.

¶394

In view of the discussions made above, since the petitioner has got an efficacious and alternate remedy available under the Code, if there is inaction on the part of the Station House Officer in not registering a case on the basis of the complaint given by him, the

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petitioner cannot take recourse to this Court for issuance of writ of mandamus or other writ, to the Station House Officer to register a crime and to investigate the case as claimed by the petitioner.

¶397

In Harbanslal Sahnia and Anr. v. Indian Oil Corporation

¶398

Ltd. and Ors. [(2003) 2 SCC 107], enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, the Hon'ble Supreme Court observed thus:-

¶399

“7........ that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

¶400

In Union of India v. Mangal Textile Mills (I) (P) Ltd,

¶401

[(2010) 14 SCC 553], the Hon'ble Supreme Court held thus:-

¶402

"6. The learned counsel appearing for the appellants submits that since the issues, subject-matter of the writ petition,

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¶404

not only involved the valuation of plant and machinery, even the question of disclosure or non-inclusion of some of the machines like stenters, etc. was also required to be gone into for determining whether the assessee was entitled to the relief claimed and these being questions of fact, the High Court erred in exercising its jurisdiction under Article 226 of the Constitution. According to the learned counsel, since an alternative statutory remedy by way of appeal before the Customs, Excise and Service Tax Appellate Tribunal (for short "CESTAT") was available to the assessee, the writ petition should have been dismissed at the threshold.

¶405

We find substance in the contention of the learned counsel for the appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case.”

¶406

The petitioner has solely relied on the statement of the 7^th

¶407

respondent, and contended that if it is true, the matter requires

¶408

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¶409

investigation. Investigation is the function of the police and writ court cannot be converted, as an investigation agency.

¶410

Remedy under Article 226 of the Constitution of India is extraordinary. Exercise of power to entertain a writ petition arises if only the person, who alleges inaction on the part of the statutory authorities, has no other alternative and efficacious remedy under the statute. True, the Hon'ble Apex Court has also held that there is no fetters in entertaining a writ petition under Article 226 of the Constitution of India, whether a person complains of violation of his fundamental or statutory right, but at the same time, it should be borne in mind that if there is an adequate and efficacious remedy available to such person, to vindicate his grievance, then the self imposed restraint on the writ court to exercise the extraordinary jurisdiction shall be applied and such person should be relegated to avail the statutory remedy.

¶411

Merely because allegations are levelled against respondents 8 to 11 and in as much as the allegations relate to abuse of power, it cannot be contended that the nature and magnitude require issuance of a writ, as the only remedy available to the petitioner. However,

¶412

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intricate the magnitude and the nature of the offences alleged, the Code of Criminal Procedure has envisaged a procedure to be followed and, therefore, the same cannot be given a go-by, and a writ petition is not the proper remedy.

¶414

In the light of the decisions of the Hon'ble Supreme Court as well as the judgment of this Court in W. P. (C) No. 14316 of 2020 dated 22.07.2020, we hold that no writ of mandamus as prayed for by the petitioner can be granted.

¶415

In the result, the writ petition is dismissed. No costs.

¶416

Sd/-

¶417

S. MANIKUMAR, CHIEF JUSTICE

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Sd/-

¶419

SHAJI P. CHALY JUDGE

///TRUE COPY///

P. A. TO JUDGE

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE ORDER IN
	CRL.M.P.NO.910/2015 ON THE FILE OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR DATED 9/12/2015.
EXHIBIT P2	TRUE COPY OF THE ORDER IN CRL.M.P.NO.910/2015 ON THE FILE OF THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR DATED 23/1/2016.
EXHIBIT P3	TRUE COPY OF THE NEWSPAPER EXTRACTS NAMELY MADYAMAM DATED 11/11/2015.
EXHIBIT P3(A)	TRUE COPY OF THE NEWSPAPER EXTRACTS NAMELY EXPRESS NEWS DATED 12/11/2015.
EXHIBIT P4	TRUE COPY OF THE COMPLAINT DATED 13/11/2015 FILED BY PETITIONER TO THE CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM.
EXHIBIT P4(A)	TRUE ENGLISH TRANSLATION OF EXHIBIT P4.
EXHIBIT P5	TRUE COPY OF THE WRIT PETITION W.P.(C) NO.36393 OF 2015 WITHOUT EXHIBITS DATED 30/11/2015.
EXHIBIT P6	TRUE ENGLISH VERSION OF INTERVIEWS MADE BY MALAYALA MANORAMA WITH 7TH RESPONDENT DATED 18/10/2020.
EXHIBIT P6(A)	TRUE ENGLISH VERSION OF INTERVIEW MADE BY MEDIA ONE WITH 7TH RESPONDENT DATED 19/10/2020.
EXHIBIT P6(B)	TRUE ENGLISH VERSION OF INTERVIEW MADE BY AM AADMI CHANNEL WITH 7TH RESPONDENT DATED 20/10/2020.
EXHIBIT P7	TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM DATED 20/10/2020.