Dismissed

Mohd.Hasham qureshi, v. The Commissioner of Police

Telangana HC29 Nov 2018WP/12054/2013

Case brief

AI extract

What is this about?

This order dismisses a writ petition challenging the inaction of police authorities regarding specific complaints. The High Court held the petition not maintainable, directing the petitioner to utilize the procedural remedy under Sections 190 and 200 of the Cr.P.C. by filing a complaint before a Magistrate.

What did the court decide?

Writ petition dismissed; petitioners directed to file complaint under Section 190 read with Section 200 Cr.P.C.

Mohd.Hasham qureshi, Vs The Commissioner of… — Civil Procedure and Limitation | Telangana HC (2018)

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HON’BLE SRI JUSTICE P. KESHAVA RAO

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WRIT PETITION No.12054 of 2013

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ORDER:

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There is no representation on behalf of the petitioner.

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The prayer in the writ petition is as follows:

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“…. To declare the action of the official respondents in not taking action against the 5^th respondent on their complaints dated 27.09.2002, 10.08.2008, 23.02.2012, 25.09.2012, 21.09.2012 as illegal, high handed, collusive and against the Article 14, 16, 21 of Constitution of India by issuing writ in the nature of the mandamus or any other writ or direction or order.”

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The specific case of the petitioners is that in spite of giving complaints dated 27.09.2002, 10.08.2008, 23.02.2012, 25.09.2012 and 21.09.2012, the respondents are not taking any action against the 5^th respondent.

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Learned Government Pleader appearing for respondent Nos.1 to 4 contended that the writ petition, as filed, is not maintainable, since the petitioners have got a remedy under Section 190 read with Section 200 Cr.P.C., against the inaction on the part of respondent Nos.1 to 4 in taking action against the 5^th respondent.

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Having heard both the counsel and from a perusal of the material on record, the admitted facts are that pursuant to the complaints lodged by the petitioners, respondent No.1 to 4 failed to take any action, though commission of prima facie case is made out, according to the petitioners. In this regard, Chapter XII of the Code of Criminal Procedure, 1973, contemplates information to the police and their powers to

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investigate. Sections 154 and 156 Cr.P.C., relate to the information in cognizable cases and the powers of the police officers to investigate cognizable cases. When information is brought before the police about commission of any alleged offence, which is cognizable, the concerned police officer is duty bound to register the crime. However, when the police officer fails to register a crime, the aggrieved party can resort to the provisions of Chapter XV of the Code and lodge a complaint before the concerned Magistrate.

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In Aleque Padamsee and others vs. Union of India and others¹ , the Apex Court had considered the similar issue and held as under:

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“6. “4. When the information is laid with the police, but no action in that behalf is taken, the complainant can under Section 190 read with Section 200 of the Code lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate, after recording evidence, finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into 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 complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and could issue process to the accused.

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These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd) v. Union of India ((1996) 11 SCC 582) . It was specifically observed that a writ petition in such cases is not to be entertained. The above position was again highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra [(2004) 7 SCC 768], Minu Kumari and another v. State of Bihar and others ((2006) 4 SCC 359) and Hari Singh v. State of U.P. (2006 (5) SCC 733) .

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1 (2007) 6 SCC 171

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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 case (supra) and reiterated in Gangadhar 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 case (supra), Gangadhar case (supra), Hari Singh case (supra), Minu Kumari case (supra) and Ramesh Kumari case (supra), we find that the view expressed in Ramesh Kumari 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 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 case (supra), Gangadhar case (supra), Minu Kumari case (supra) and Hari Singh case (supra). The view expressed in Ramesh Kumari case (supra) was re- iterated in Lallan Chaudhary and others v. State of Bihar (AIR 2006 SC 3376) . The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences case (supra) , Gangadhar case (supra) , Hari Singh case (supra) and Minu Kumari case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code. It appears that in the present case initially the case was tagged by order dated 24.02.2003 with WP(C) 530/2002 and WP(C) 221/2002. Subsequently, these writ petitions were de-linked from the aforesaid writ petitions.

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The writ petitions are finally disposed of with the following directions:

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(1) If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed.

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

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

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

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In Hari Singh vs. State of U.P.² , the Apex Court held

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as under:

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“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 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 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 Employees’ Union (Regd.) v. Union of India ((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 said proposition was also considered in Divine Retreat Centre vs. State of Kerala and others³ and held that wherever there is inaction on the part of the police to act on the complaint and follow the procedure under Chapter XII of the Code, it is for the aggrieved party to file a complaint under Section 190 read with Section 200 Cr.P.C. before the Magistrate.

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The grievance of the petitioners is that respondent Nos.1 to 4 are not taking any action pursuant to the complaints lodged by them. In such a situation, the petitioners have got every right to invoke the powers under Section 190 read with

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2 (2006) 5 SCC 733

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3 (2008) 3 SCC 542

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Section 200 Cr.P.C., and file a complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to look into the complaint in compliance with the procedure contemplated in Chapter XV of the Code. Therefore, the course left open to the petitioners is to approach the concerned Magistrate by invoking the provisions of Chapter XV of the Code. The petitioners cannot straight away file the writ petition without invoking the provisions of Sections 190 and 200 Cr.P.C. In that view of the matter, this Court is of the opinion that the writ petition, as filed, is not maintainable.

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Accordingly, the writ petition is dismissed.

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Miscellaneous petitions, if any, shall also stand dismissed.

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_____________________ P. KESHAVA RAO, J Date: 29.11.2018. ES

Mohd.Hasham qureshi, v. The Commissioner of Police

Case brief

What is this about?

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Mohd.Hasham qureshi, v. The Commissioner of Police

Case brief

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