2020 (7) TMI 790 - HC - Indian Laws

Smuggling - 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.

Summary

Issues Involved:
1. Whether the petitioner can seek registration of an FIR through a writ petition.
2. Whether the petitioner can demand the investigation to be handed over to the CBI or any other Central Agency.
3. Whether the petitioner has provided sufficient material to warrant an investigation.
4. Whether the petitioner has made out a case for the issuance of a writ of mandamus.

Analysis of the Judgment:

1. Registration of FIR through Writ Petition:
The petitioner sought a writ of mandamus for the registration of an FIR concerning alleged scams involving high-ranking officials. The court noted that the petitioner had not exhausted alternative remedies available under the Code of Criminal Procedure (Cr.P.C.). Specifically, the petitioner could have approached the Magistrate under Section 156(3) Cr.P.C. or filed a complaint under Section 200 Cr.P.C. The court emphasized that writ petitions should not be entertained when statutory remedies are available. The court cited several precedents, including *Sakiri Vasu v. State of U.P.*, where it was held that the appropriate remedy lies in approaching the Magistrate rather than filing a writ petition.

2. Demand for Investigation by CBI or Other Central Agencies:
The petitioner also sought to hand over the investigation to the CBI or NIA. The court referred to the Hon'ble Chief Minister’s letters to the Prime Minister and Finance Minister requesting a coordinated investigation by central agencies. Consequently, the Central Government had already directed the NIA to investigate the gold smuggling case. The court reiterated that the power to order a CBI investigation should be exercised sparingly and only in exceptional cases. The court cited *State of West Bengal v. Committee for Protection of Democratic Rights* and *Secretary, Minor Irrigation & Rural Engineering Services v. Sahngoo Ram Arya* to support this position.

3. Sufficiency of Material Provided by the Petitioner:
The petitioner relied solely on statements made by the Leader of the Opposition and lacked substantive evidence. The court held that mere allegations without supporting material are insufficient to warrant an investigation. The court emphasized that the petitioner must provide concrete evidence to substantiate claims of corruption and abuse of power. The court noted that the petitioner’s reliance on media statements and the absence of documentary evidence rendered the allegations vague and unsubstantiated.

4. Issuance of Writ of Mandamus:
The court examined whether the petitioner had made out a strong case for the issuance of a writ of mandamus. It was held that a writ of mandamus requires a clear right, a demand, and a refusal by the authorities. The court found that the petitioner had not made a formal demand for investigation to the appropriate authorities before approaching the court. The court also highlighted that the petitioner had alternative remedies under the Cr.P.C. and that the writ jurisdiction should not be invoked when such remedies are available. The court cited *Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation* to emphasize that writs should be issued based on equitable principles and substantial public interest.

Conclusion:
The court dismissed the writ petition, concluding that the petitioner had not exhausted alternative remedies and had failed to provide sufficient material to substantiate the allegations. The court reiterated that writ jurisdiction should be exercised sparingly and only when no other adequate remedy is available. The court also stressed the importance of providing concrete evidence and following statutory procedures before seeking judicial intervention.