2018 (5) TMI 2097 - HC - Indian Laws

Maintainability 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- -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.

Summary

Issues Involved:
1. Maintainability of the intra-court appeal.
2. Applicability of issue estoppel.
3. Availability and necessity of alternative remedies under the Criminal Procedure Code.
4. Interpretation and application of the Supreme Court's decision in Lalita Kumari v. State of UP.

Detailed Analysis:

Issue No. I: Maintainability of the Intra-Court Appeal
The primary question was whether an intra-court appeal is maintainable when the Single Judge's decision under Article 226 involves criminal jurisdiction. The court referred to the Kerala High Court Act and compared it with the Letters Patent applicable to other High Courts. It concluded that Section 5 of the Kerala High Court Act does not exclude orders passed by a Single Judge in the exercise of criminal jurisdiction from being appealed. Thus, the intra-court appeal was deemed maintainable.

Issue No. II: Applicability of Issue Estoppel
The court examined whether the principle of issue estoppel applied, given that similar complaints had been previously filed and adjudicated. The principle of issue estoppel, which prevents re-litigation of issues already decided, was discussed. However, the court noted that this issue became academic due to the finding on the maintainability of the writ petition based on the availability of alternative remedies.

Issue No. III: Availability and Necessity of Alternative Remedies
The court analyzed whether the complainants could bypass statutory remedies under the Criminal Procedure Code and directly seek judicial review under Article 226. The statutory scheme provides remedies such as approaching the Superintendent of Police under Section 154(3) or the Magistrate under Sections 156(3) and 190. The court emphasized that Lalita Kumari v. State of UP did not eliminate these statutory remedies. Instead, it clarified that the police must register an FIR if a complaint discloses a cognizable offence, but it did not address the bypassing of statutory remedies.

The court cited multiple precedents, including Aleque Padamsee v. Union of India and Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, which reinforced the necessity of exhausting alternative remedies before seeking a writ. The court found that the complainants had not followed these statutory procedures, making their writ petitions premature.

Issue No. IV: Interpretation of Lalita Kumari v. State of UP
The court clarified that Lalita Kumari addressed the mandatory registration of FIRs by the police upon receiving a complaint disclosing a cognizable offence. It did not address the issue of bypassing statutory remedies. The court held that Lalita Kumari did not permit complainants to ignore available statutory remedies and directly approach the High Court.

Conclusion:
The court concluded that the impugned judgments directing the police to register crimes were unsustainable due to the complainants' failure to exhaust alternative statutory remedies. The judgments were set aside, and the writ petitions were dismissed. The court emphasized that the complainants should pursue their grievances through the prescribed statutory channels.