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2018 (5) TMI 2097 - HC - Indian LawsMaintainability of writ appeal - Seeking police to register a crime and investigate it - Criminal breach of trust - misappropriation breaking out in the open - misdeeds amounting to cognizable offences - police refused to register an FIR - criminal jurisdiction - principle of issue estoppel, first and foremost, affect the writ petition or not? - Permission to do away with the statutory remedies and, instead, take a straight recourse to judicial review? - Ratio v. Obiter v. Holding - Lalita Kumari - Are there any issues sub silentio? - Can a complainant disregard the alternative remedies provided under, say, the Criminal Procedure Code and, instead, insist on a writ remedy? - Refusal to Register a Crime-the Alternative Remedies. Is the writ appeal maintainable? - HELD THAT:- Section 5 of the Kerala High Court Act mandates that an appeal shall lie to a bench of two judges from "(i) a judgment or order of a Single Judge in exercise of original jurisdiction), and (ii) a judgment of a Single Judge in exercise of appellate jurisdiction in respect of a decree or order made in exercise of original jurisdiction by a subordinate court." - there is no exclusion of the orders passed by a learned Single Judge in exercise of a criminal jurisdiction." - Given the emphatic enunciation of law by a co-equal Bench of this Court, it is held that the intra-court appeal is eminently maintainable. Does the principle of issue estoppel, first and foremost, affect the writ petition? - HELD THAT:- The issue of estoppel stands merged, as observed by the Supreme Court, State of Jharkhand v. Lalu Prasad Yadav [2017 (5) TMI 490 - SUPREME COURT] in the principles of Autrefois acquit and Autrefois convict, both of which find enshrined in article 20(2) and section 300 Cr.P.C. Indeed, issue estoppel, a common law doctrine, has been well-entrenched and oft-applied to criminal proceedings. The courts in India, too, have applied this principle at all levels, Apex to trial courts - given the finding on maintainability in the next few paragraphs, this issue becomes academic. And academic issues need no adjudication. So we reckon that our finding on the threshold issue, alternative remedy, obviates an answer to this issue. Does the Supreme Court in Lalita Kumari [2013 (11) TMI 1520 - SUPREME COURT] permit a complainant to do away with the statutory remedies and, instead, take a straight recourse to judicial review? - Pithily put, what is the holding of Lalitha Kumari? - HELD THAT:- The issue before the Supreme Court was this: is a police officer bound to register an FIR under section 154 of Cr.P.C., upon receiving any information relating to the commission of a cognizable offence or has he got the power to conduct a preliminary inquiry to test the veracity of such information before registering the crime? - Lalita Kumari's holding is simple and straight: If an aggrieved person approached the police complaining of a cognizable offence, they must register an FIR and promptly enquire into the crime, the arrest of the accused not being an essential step in that process. Ratio v. Obiter v. Holding - HELD THAT:- Holding emerges when the ratio, the pure principle of law, is applied to the facts of a particular case. That is, a holding is what the court actually decides after combining the facts of a case with the legal principles it deduces in the context of that case - Ratio requires adherence to the extent possible, but the holding compels compliance fully. Stare decisis admits of no exception to a case-holding in the adjudicatory hierarchy. Lalita Kumari - Are there any issues sub silentio? - HELD THAT:- 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 - Lalita 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. Can a complainant disregard the alternative remedies provided under, say, the Criminal Procedure Code and, instead, insist on a writ remedy? - HELD THAT:- Despite the repeated attempts of some members failing to bring the police to the Church's door, Shine maintains that one complaint pending before the Magistrate does not affect his right to maintain another one on his own. In Pramatha Nath Taluqdar vs. Saroj Ranjan Sarkar [1961 (11) TMI 63 - SUPREME COURT], a three-Judge Bench of the Supreme Court has held that that there is nothing in the law prohibiting a second complaint on the same allegations when a previous complaint had been dismissed under s. 203 of the Code of Criminal Procedure. Indeed, Pramatha Nath deals with the second complaint by the same person upon having the first one dismissed. It does not apply here. How Has the Impugned Judgment Proceeded? - HELD THAT:- 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 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. Refusal to Register a Crime-the Alternative Remedies - HELD THAT:- Clear and compelling are the judicial directions vis-à-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. Shine Varghese has faltered at the first hurdle-the alternative remedy, which he has on more than one count. That is, the impugned judgment suffers from legal infirmity and deserves to be set aside - writ appeal allowed.
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