1996 JTR(SC) 1776
1997 1 AICLR 218 ; 1997 CriLR 1 ; 1996 4 Crimes(SC) 180 ; 1996 Supp JT 57 ; 1997 4 RCR(Cri) 594 ; 1997 RLR 1 ; 1996 8 Scale 383 ; 1996 11 SCC 582 ; 1997 SCC(Cri) 303 ; 1996 Supp8 SCR 138 ; 1997 1 UJ 68 ; 1996 KHC 3671 ; 1997 1 KLT(Online) 1010 ; 1996 8 Supreme 142
1996(8) Supreme 142
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
All India Institute of Medical Sciences Employees Union (Regd.) through its President -Petitioner
versus
Union of India & Ors. -Respondents
Special Leave Petition (C) No. 20458 of 1996
Decided on 29-10-1996
Counsel for the Parties :
For the Petitioner : S.V. Deshpande and Pramit Saxena, Advocates.
VERY IMPORTANT POINT
Without availing of the procedure provided in the Code of Criminal 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.
Act
Referred
:CONSTITUTION OF INDIA : Art.226
CRIMINAL PROCEDURE CODE : S.157, S.203, S.156, S.200, S.173, S.154, S.190
(A) The Code of Criminal Procedure, 1973, sections 154, 156, 157, 173, 190, and 203, read with Article 226 of the Constitution, govern the procedure for cognizable offences, requiring information to be given to the police, investigated by them, and, if necessary, prosecuted before a competent magistrate. Section 190 read with Section 200 provides that where no action is taken by the police, the complainant may approach the magistrate to record evidence and direct investigation, while Section 203 empowers the magistrate to dismiss the complaint if no offence is made out. The High Court, under Article 226, may entertain writ petitions challenging inaction, but only after the prescribed procedure is exhausted. The Division Bench of the Delhi High Court, in CWP No. 1946/96, examined whether mandamus could issue to compel the police to investigate a cognizable offence punishable under Section 409 of the Indian Penal Code, and refused to issue the writ. The Supreme Court, in special leave under appropriate law, reviewed this refusal.
(B) The core legal principles are that the remedy under the Code is sequential and jurisdictional; a complainant must first approach the police, and only if they fail to act can the magistrate intervene under Sections 190 and 200. The High Court cannot issue writs like mandamus to direct investigation before this procedure is completed, and the Court is not required to investigate every complaint. The onus is on the petitioner to follow the statutory investigation process.
Facts of the case:
A special leave petition was filed against an order of the Delhi High Court dated May 14, 1996, in CWP No. 1946/96, challenging the refusal to institute proceedings against Dr. S.K. Kacker for an alleged cognizable offence under Section 409 of the Indian Penal Code. The petitioner contended that they had laid all necessary information before the Director, the Minister, and the Prime Minister, but no action was taken, and therefore the High Court should have entertained a writ petition under Article 226 and directed the Central Bureau of Investigation to investigate.
Findings of Court:
The court found that the petitioner had not availed themselves of the procedure prescribed under the Code of Criminal Procedure, 1973, by approaching the police as required under Sections 154 and 156, nor had they moved the magistrate under Sections 190 and 200 before approaching the High Court. Consequently, the High Court was justified in refusing to grant the relief sought, and the special leave petition was dismissed.
Issues:
Whether a writ petition under Article 226 lies to direct a police investigation before the statutory procedure of informing the police and securing a magistrates order is exhausted, and whether the High Court was correct in declining to entertain such a petition in this case.
Ratio Decidendi:
The court held that the statutory procedure under Sections 154, 156, 173, 190, and 200 must be followed before a complainant can seek judicial intervention. The High Courts refusal to issue mandamus was legally sound because the petitioner had not exhausted the available statutory remedies and alternative procedures under the Code.
Result:
The special leave petition is dismissed, and the petitioner is directed to follow the prescribed procedure under the Code of Criminal Procedure, 1973, by first approaching the police and, if necessary, the magistrate, before seeking any further judicial remedy.
(A) The Code of Criminal Procedure, 1973, sections 154, 156, 157, 173, 190, and 203, read with Article 226 of the Constitution, govern the procedure for cognizable offences, requiring information to be given to the police, investigated by them, and, if necessary, prosecuted before a competent magistrate. Section 190 read with Section 200 provides that where no action is taken by the police, the complainant may approach the magistrate to record evidence and direct investigation, while Section 203 empowers the magistrate to dismiss the complaint if no offence is made out. The High Court, under Article 226, may entertain writ petitions challenging inaction, but only after the prescribed procedure is exhausted. The Division Bench of the Delhi High Court, in CWP No. 1946/96, examined whether mandamus could issue to compel the police to investigate a cognizable offence punishable under Section 409 of the Indian Penal Code, and refused to issue the writ. The Supreme Court, in special leave under appropriate law, reviewed this refusal.
(B) The core legal principles are that the remedy under the Code is sequential and jurisdictional; a complainant must first approach the police, and only if they fail to act can the magistrate intervene under Sections 190 and 200. The High Court cannot issue writs like mandamus to direct investigation before this procedure is completed, and the Court is not required to investigate every complaint. The onus is on the petitioner to follow the statutory investigation process.
Facts of the case:
A special leave petition was filed against an order of the Delhi High Court dated May 14, 1996, in CWP No. 1946/96, challenging the refusal to institute proceedings against Dr. S.K. Kacker for an alleged cognizable offence under Section 409 of the Indian Penal Code. The petitioner contended that they had laid all necessary information before the Director, the Minister, and the Prime Minister, but no action was taken, and therefore the High Court should have entertained a writ petition under Article 226 and directed the Central Bureau of Investigation to investigate.
Findings of Court:
The court found that the petitioner had not availed themselves of the procedure prescribed under the Code of Criminal Procedure, 1973, by approaching the police as required under Sections 154 and 156, nor had they moved the magistrate under Sections 190 and 200 before approaching the High Court. Consequently, the High Court was justified in refusing to grant the relief sought, and the special leave petition was dismissed.
Issues:
Whether a writ petition under Article 226 lies to direct a police investigation before the statutory procedure of informing the police and securing a magistrates order is exhausted, and whether the High Court was correct in declining to entertain such a petition in this case.
Ratio Decidendi:
The court held that the statutory procedure under Sections 154, 156, 173, 190, and 200 must be followed before a complainant can seek judicial intervention. The High Courts refusal to issue mandamus was legally sound because the petitioner had not exhausted the available statutory remedies and alternative procedures under the Code.
Result:
The special leave petition is dismissed, and the petitioner is directed to follow the prescribed procedure under the Code of Criminal Procedure, 1973, by first approaching the police and, if necessary, the magistrate, before seeking any further judicial remedy.
ORDER
This special leave petition has been filed against the order of the Delhi High Court made 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 Division Bench refused to issue mandamus to the police to investigate into the allegations made against the said doctor.
2. Shri Deshpande, learned counsel for the petitioner, contended that the petitioner had laid all the necessary information before the Director as well as the Minister concerned and also the Prime Minister bringing to their notice all the offences committed by the doctor but no action in that behalf had been taken. As a result, the petitioner was constrained to move the High Court under Article 226 of the Constitution to take the steps as required under the law. The High Court, therefore, was not right in refusing to entertain the writ petition and giving directions in this behalf. We find that the stand taken by the petitioner is not correct in law.
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 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.
4. When the information is laid with the police but no action in that behalf was 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 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 complaint/evidence recorded prima facie discloses offence, he is empowered to take cognizance of the offence and would issue process to the accused.
5. 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.
6. 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.
SLP accordingly dismissed.
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Parallel Citations of other Journals :
All India Institute of Medical Seciences Employees Union (Regd. ) v. Union of India & Ors., 1996(8) Supreme 142
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