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2020 (7) TMI 790 - HC - Indian LawsSmuggling - Gold - Scheduled Offences - Principles of 'qui tam action' under Article 226 of the Constitution of India - remedies by way of a writ of mandamus - registration of an FIR - offences under the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974, Indian Penal Code, 1860, Prevention of Corruption Act, 1988 and the Customs Act, 1962 - HELD THAT:- 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. In Divine Retreat Centre v. State of Kerala and others, [2008 (3) TMI 734 - SUPREME COURT], 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. Whether, the petitioner has made out a strong case for issuance of a writ of mandamus? - HELD 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 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. 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 filed by the aggrieved party on account of the inaction on the part of the police in not registering case 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. 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 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 - Merely because allegations are levelled against the 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. 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 - Petition dismissed.
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