TMI Blog2020 (7) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely 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. - WP (C). No. 14316 OF 2020(S) - - - Dated:- 22-7-2020 - THE HONOURABLE THE CHIEF JUSTICE MR. S. MANIKUMAR AND THE HONOURABLE MR. JUSTICE SHAJI P. CHALY For the Appellant : ADVS. SRI.MATHEWS J.NEDUMPARA, SRI. P. BIJIMON For the Respondent : R3, R4, R12, R13 R16 BY ADVOCATE GENERAL, SRI. C. P. SUDHAKARA PRASAD, SRI. K. K. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 12, 13 and 16, namely, the CBI and/or the NIA and/or the Crime Branch to register an FIR, and conduct an effective, meaningful, independent and impartial enquiry into the smuggling of gold to India, by abusing the diplomatic channel and the Sprinklr, e-Mobility Consultancy scams, unmindful of the fact that those, who could be a part of the crimes, are in the helm of the affairs of the State, in matters which fall undoubtedly within their exclusive jurisdiction. 2. Short facts leading to the filing of the writ petition are that, instant writ is the second petition, in the nature of 'qui tam action' under Article 226 of the Constitution of India, which the petitioner is instituting for remedies by way of a writ of mandamus and, in particular, registration of an FIR, and thereby, setting of the criminal law in motion against Sri. Pinarayi Vijayan, the Hon'ble Chief Minister of Kerala and Sri. M. Shivashankaran, Secretary in-charge of the Hon'ble Chief Minister's office, for 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. 5. Petitioner has further stated that the allegation is that respondentsNos.2 and 3, viz., Sri.M Shivashankaran, IAS and Ms. Swapna Suresh, the Operation Manager at KSITIL, are involved in smuggling of 30 kgs of gold from UAE to India using the diplomatic channel. It is alleged that the customs went on to examine the baggage sent through the diplomatic channel since it received certain intelligence inputs to the effect that the diplomatic channel is used by the international mafia for smuggling gold to India, without paying duty. 6. It is further alleged that the customs officers were threatened with dire consequences. According to the petitioner, it is in the public domain, the 5th respondent was appointed by the 2nd respondent, exercising his discretionary powers solely on the recommendations of respondent No.6-PriceWaterHouseCoopers Pvt. Ltd. (PwC), a consultancy firm involved in e-Mobility Consultancy scam. 7. It is further stated that respondent No.5 was instrumental in the fabrication of a false complaint of sexual harassment against an officer of Air India while she was working with AISATS. In March, 2015, Swapna Suresh allegedly made a false complaint forging t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruption, abuse of office, smuggling and other illegal activities, even involving international mafia, of which the Hon'ble Chief Minister's office is alleged to be nerve center, is required to be investigated effectively and all those, who are involved with the offence, are liable to be brought to book. However, considering the current realities of life, it is going to be a mere mirage. Political equations keep changing, there is nothing wrong in that, but registration of an FIR, investigation of an offence, and bringing of an accused to book cannot be a matter of political equations. With utmost respect to the 15th respondent, the Leader of the Opposition, petitioner has submitted that the Leader of the Opposition, who had made serious demand for investigation into the Sprinklr scam and unearthing the truth, and that nobody shall be spared, when he instituted a writ petition, a so-called PIL, before this Court as the petitioner, did not even array Shri Pinarayi Vijayan, the Hon'ble Chief Minister as a party, much less seek the registration of crime. It is further submitted that the Leader of the Opposition and other political leaders may not be much concerned about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation, it is the duty of the investigating authorities to exonerate the person against whom an FIR was registered. CBI cannot take on the investigation of various scams of which the Hon'ble Chief Minister's office is allegedly the epicenter unless this Court, in exercise of its jurisdiction under Article 226 of the Constitution Commands so. No FIR is going to be registered against Shri Shivshankaran, unless this Court issues a writ in the nature of mandamus commanding the police to register an FIR. It is because of the realities of life, which is in conflict with the requirement of law. Police under the penal laws are duty bound to register an FIR where commission of a cognizable offence is brought to its notice. 12. On the above pleadings, petitioner has raised the following grounds: (a) The Sprinklr scam, BevQ App scam, and the e-mobility consultancy scams, in all of which the 2nd respondent, sri M Sivasankaran IAS, is allegedly involved, of which it is alleged that the 15th respondent, Shri Pinarayi Vijayan, Hon'ble Chief Minister of Kerala, is fully aware of, amounts to offences punishable under Section 13 of the Prevention of Corruption Act, 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na fide and in the instant case, the police is duty bound to register an FIR and to investigate the various scams involving Shri Shivshankaran, nay, even Shri Pinarayi Vijayan. However, it is unrealistic to expect the police to conduct a meaningful, fair and impartial investigation because those involved are allegedly very close to the Hon'ble Chief Minister and the IT Secretary to the Government of Kerala. Therefore, the Petitioners are left with no other option but to seek a mandamus at the hands of this Court, commanding the Police to discharge their duty. To repeat, no sanction is required to register an FIR. No sanction for prosecution is also required, for recourse to corrupt practice does not amount to the discharge of one s official duty. Sanction is required where a public servant in the lawful discharge of duty is alleged to have committed an offence, to protect him from vexatious prosecution. (e) Petitioner has finally contended that investigation by the CBI involves intricate Centre-State relationship which is politically too sensitive. Many serious crimes which have inter-state ramifications have remained, un-investigated because of the intricacies involved in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. He also raised a question that it is for the learned Advocate General appearing for the State, to answer as to why FIR has not been registered in spite of the complaint lodged by the petitioner way back in April, 2020. 18. 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. 19. Learned counsel for the petitioner further submitted that the situation today is that the former Principal Secretary to the Hon'ble Chief Minister of Kerala, Department of Information Technology, Government of Kerala (respondent No.2), is summoned and interrogated for nine hours, in the matter of involvement of smuggling. He further submitted that the 2nd respondent has direct access and facilitated smuggling. According to him, involvement of the Hon'ble Chief Minister is naked and his family members are involved in Sprinklr scam. When the Hon'ble Chief Minister is the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a nation and, therefore, requested a thorough investigation in more than one angle. The Hon'ble Chief Minister has also requested that an effective and coordinated investigation into the above said incident by all the Central Agencies concerned is the need of the hour. The Hon'ble Chief Minister has also stated that the scope of the probe should cover all aspects from the source to the end utilization and every link of this crime should be unravelled so that such incidents do not recur. 23. Learned Advocate General further submitted that the State has assured to provide all necessary assistance and support to the agencies involved in the investigation. Thus, he had sought for immediate intervention for an effective and coordinated investigation to the above said incident. 24. Learned Advocate General further submitted that thereafter, the Central Government has issued an order directing the National Investigation Agency to investigate and that consequently, an FIR has been registered and investigation is being conducted. Referring to Section 8 of the NIA Act, 2008, learned Advocate General submitted that the National Investigation Agency, while investigating any Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y police officer of the State Government investigating the offence, shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. 30. Referring to prayer No. l sought for by the petitioner, learned Advocate General submitted that the Central Government have already ordered the National Investigation Agency, respondent No.10, to conduct investigation and nothing survives insofar as the said prayer is concerned. 31. In respect of the other prayers sought for by the petitioner, directing registration of FIR, learned Advocate General reiterated that the petitioner has just mentioned the names of the alleged scams and there is absolutely no material or evidence alleging involvement of the Hon'ble Chief Minister or others mentioned in the statement of facts. 32. Learned Advocate General further submitted that though this Court observed that the writ petition instituted in the form of a person aggrieved is not correct, and directed that an affidavit satisfying requirements of the Rules of the High Court of Kerala, 1971 to be made, except filing an affidavit under Rule 146A of the said Rules, petitioner has not changed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of gold smuggling scam, Sprinklr, BevQ app and e-mobility consultancy scams, in which the Hon'ble Chief Minister and the 2nd respondent are allegedly involved, to the CBI/NIA, and to conduct a fair and impartial investigation, and the same cannot be ordered in a writ petition. 37. On the parameters required to be satisfied for a CBIinvestigation, the Advocate General 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 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 the PIL, on the averments set out in the statement of facts, is liable to be dismissed. 38. Inviting our attention to the averments in paragraph (11) of the Statement of facts, learned Advocate General further contended that the allegation is only with respect to smuggling and appointment of 5th respondent - Ms. Swapna Suresh, and there are no materials, relevant or cogent, alleging involvement of the Hon'ble Chief Minister, on the above. 39. Learned Advocate General furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to paragraph (19) of the Statement of facts. 43. It is also his submission that in a matter of the above magnitude and nature, petitioner cannot be expected to produce evidence, which is in the custody of the police and other departments, and that is why the petitioner has sought for an interim prayer directing Inspector General of Police/the Director, Vigilance and Anti Corruption Cell, to take custody and/or produce before this Court as and when required, the entire papers, proceedings, correspondence and communications, all electronic data, including records of video and telephonic calls concerning the aforesaid scams, and in particular, the gold smuggling scam, involving respondent Nos.2 and 5. 44. According to the learned counsel for the petitioner, if it is a civil case, it is his bounden duty to produce the material, and that the burden casts on him. Whereas, in the case on hand, all the documents are in the exclusive domain of the Government and it is preposterous on the part of the learned Advocate General, to require the petitioner to produce the material documents, thereby converting the instant writ petition as a civil case. According to him, such an exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the averments continued even after the observation of this Court that the instant writ petition ought to have been instituted as a public interest writ petition, learned counsel for the petitioner submitted that the objections are technical in nature and should not be taken as a ground to reject the prayers sought for by the petitioner. If there is any defect, within a given time, the petitioner can even correct the same. On above said contentions, petitioner sought for registration of FIR. 51. Mr. Arjun Ambala patta, learned Senior Public Prosecutor for National Investigation Agency (respondent No.10), submitted that acting on a letter dated 8.7.2020, the Central Government has issued an order directing investigation by the National Investigation Agency, and a case in Crime No. R.C.2/2020 has been registered under Sections 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967, and the investigation is in the preliminary stage. 52. Mr. Jaishankar V. Nair, learned counsel for the Customs/Central Government, submitted that as regards the offences under the provisions of the Customs Act, 1962, investigation is taken up by the Customs (Preventive) Commissionerate, Cochi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vandrum (respondent No.16), to register an FIR based on the allegation that Sri. M. Shivashankaran, Senior Officer of the Indian Administrative Service, Sri. Pinarayi Vijayan, Hon'ble Chief Minister of Kerala, and/or those who are close to them and involved in smuggling of gold to India using the diplomatic channel and the Sprinkler, BevQ App and e-Mobility Consultancy scams, and to conduct an effective, meaningful, independent and impartial enquiry, unmindful of the fact that those who could be involved in the crimes are in the helm of affairs of the State, and/or to further direct the State and Central Governments to facilitate such an investigation, nay, direct the State Government to handover the investigation to the CBI. 56. Letters dated 8.7.2020 addressed to the Hon'ble Prime Ministerand Hon'ble Minister of Finance and Corporate Affairs, New Delhi, are extracted hereunder: GOVERNMENT OF KERALA Pinarayi Vijayan CHIEF MINISTER D.O.No.1130/2020/CM, Dated 08.07.2020 Dear Shri. Modi ji, I invite you kind attention to the seizure of about 30 kg of gold by the Customs Officials, Trivandrum International Airport on July 5, 2020. The fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General NOIA, New Delhi, Chief Secretary, Government of Kerala and to the DGP, Kerala is extracted hereunder: No.11011/49/2020NIA Government of India Ministry of Home Affairs CTCR Division ************* North Block, New Delhi Dated the 9th July, 2020 ORDER Whereas, the Central Government has received information regarding registration of O.R. No.07/2020 of Customs (Preventive) Commissionerate, Cochin, relating to seizure of 30 kg of 25 karat gold worth ₹ 14,82 crores at Trivandrum International Airport on 5th July, 2020 by the Customs officers. And whereas, the aforesaid consignment was camouflaged in diplomatic baggage from UAE that is exempted from inspection as per the Vienna Convention. And whereas, the above consignment was to be received by one Shanth P.S. S/o. Shn Sadana Kumar, MUDRA, TC65/2055, HRA-48, Thiruvallom, Thiruvananthapuram, Kerala who had worked in the UAE Consulate earlier as Public Relations Officer in complicity with Swapna Suresh, Sandeep Nair others. And whereas, initial enquiries have revealed that the proceeds of the smuggled gold could be used for financing terrorism in India. And whereas, section 16, 17 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vity of the offence and other relevant factors, it is a fit case to be investigated by the Agency. (4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence. (5) Notwithstanding anything contained in this section, if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act, it may, suo motu, direct the Agency to investigate the said offence. (6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency. (7) For the removal of doubts, it is hereby declared that till the Agency takes up the investigation of the case, it shall be the duty of the officer-in-charge of the police station to continue the investigation. 59. Section 8 of the Act deals with the power to investigate offences and the same reads thus: 8. Pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In paragraph (6), it is further alleged that Ms. Swapna Suresh was the girl Friday of the 2nd respondent, Principal Secretary to the Hon'ble Chief Minister, and she was involved in the conduct of major events like the programme arranged to honour the Sheikh of Sharjah on 24th September, 2017. It is further alleged that she is a friend of Speaker P.Sreeramakrishnan and it was the Speaker, who inaugurated the office of a company with which Swapna Suresh is associated. 64. It is further alleged that the Hon'ble Chief Minister knows her very well, that too of her background, for the Hon'ble Chief Minister is provided with intelligence inputs of those working in his office and those who closely interact with him. 65. It is further alleged that the Hon'ble Chief Minister, though may not be directly involved nitty-gritties of transactions involving companies of questionable credentials like Sprinklr, PwC, etc., he certainly is fully aware of the business worth hundreds of crores of rupees which was building and further promoted by abusing his official position as the Hon'ble Chief Minister of Kerala. 66. In paragraph (7), the petitioner has stated that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior IAS officer, are allegedly involved, are offences of grave nature, and involve international smuggling mafia, underworld. 72. Insofar as prayer No.1 is concerned, the Hon'ble Chief Minister, Government of Kerala has already written a letter dated 8.7.2020 to the Hon'ble Prime Minister of India and the Hon'ble Minister of Finance and Corporate Affairs, requesting for an effective and coordinated investigation into the alleged incident. Accordingly, the Central Government, in exercise of their powers under Sections 6 and 8 of the National Investigation Agency Act, 2008, have passed an order dated 9.7.2020 directing the National Investigation Agency to take up investigation. A case in Crime No. R.C.2/2020 has been registered under Sections 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967, and the investigation is under progress. As regards the violations of provisions of the Customs Act, investigation has been taken up by the Customs (Preventive) Commissionerate, Cochin, in O.R. No.7 of 2020. Even as per the version of learned counsel for the petitioner, Mr. Shivshankaran, IAS, Secretary to the Government, Department of Information Technology, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and not proceeding further. (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. (v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) As to what type and in which cases preliminary inquiry is tobe 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: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (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. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. (vii) While ensuring and protecting the rights of the accused and the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. 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]. 7. 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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. 78. Facts of the decision in Sakiri Vasu (cited supra), in nutshell 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: 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. 14. Section 156(3) states: Any Magistrate empowered under Section 190 may order such an investigation as above mentioned. The words `as above mentioned' obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the Police Station. 15. 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. 16. The power of the Magistrate to order further inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax appellate tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act. 22. 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 Coop Society [2003] 1 SCR 397 etc. 23. 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. 24. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 28. It is true that alternative remedy is not an absolute bar toa writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. 79. As to whether, proper investigation is done and on monitoring,the Hon'ble Apex Court at paragraphs 29 and 30 in Sakiri Vasu (cited supra), ordered thus: 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. 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-incharge of the concerned police station, he can certainly direct the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57(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. 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. 157. Procedure for investigation preliminary inquiry. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 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: 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. 77475, para 13). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought 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. 86. In Kunga Nima Lepcha and Ors. v. State of Sikkim and 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: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. 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 interests. In all of these circumstances, the writ court can only play a corrective role to ensure that the integr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Apex Court, following the Sakiri Vasu's case (cited supra). The Hon'ble Apex Court, at paras 8 to 11, held thus: 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the other statutory safeguards available to them and insist on a public-law remedy--especially a remedy under Art. 226, at that. 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. 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. 54. The concept of sub silentio has been explained by Salmond on Jurisprudence, 12th Edn. as follows: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 three-Judge Bench of the Supreme Court in Kunga Nima Lepcha v. State of Sikkim. (2010) 4 SCC 513. 76. Clear and compelling are the judicial directions is- -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. 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 15th January 2018; he filed the writ petition on 16th January, the next day. In fact, the learned Public Prosecutor maintains that Shine approached the police only on 16th January, the complaint bearing the date of 15th January notwithstanding. Without waiting even for the receipt, the Public Prosecutor furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Apex Court held thus: 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 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 extraordinary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lightly set in motion against important 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. 93. 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: 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 const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely 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. 95. As rightly contended by the learned Advocate General, the petitioner has only mentioned about the names of the alleged scams, viz., Sprinklr, BevQ App. and e-Mobility Consultancy. There are no details in the Statement of facts as to what they are. Except stating that the Hon'ble Chief Minister is involved, abused his position, and his office is alleged to be nerve center, there is nothing in the Statement of facts indicating, which action or inaction of the Hon'ble Chief Minister or the others, against whom allegations have been levelled, have indulged in corruption, attracting the provisions of Prevention of Corruption Act, 1988 as well as the Indian Penal Code, 1860. Although the writ petition has been directed to be instituted as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) (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] (v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int on public interest litigants. 97. This Court in the unreported judgment dated 30.06.2020 in B. Radhakrishna Menon v. State of Kerala and Ors. [W.P.(C) No.12109 of 2020], at paragraph 45, held thus: 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 thus: (1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (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 Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urces to cases which legitimately require attention. (17) Worse still, such petitions pose a grave danger to the credibility of the judicial process. (18) This has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law. (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. (20) Political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office. (21) Courts resolve disputes about legal rights and entitlements. (22) Courts protect the rule of law. (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. 98. In the light of the principles of law laid down by the Hon ble Supreme Court as well as this Court, instant writ petition does not satisfy the requirements of a Public Interest Litigation. 99. On the last issues as to whether, the petitioner has made out a strong case for issuance of a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69] wherein, at paragraph 8, the Hon'ble Apex Court held thus: 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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. 7. 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. 109. The petitioner has solely relied on the statement of the Leader of the Opposition and contended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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