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2020 (4) TMI 838 - HC - Insolvency and BankruptcyInaction of the official respondent in not registering an FIR on the basis of the complaint made by the petitioner - complaint discloses a cognizable offence of forgery being committed for filing a case into the court against the petitioner - whether the High Court in exercise of jurisdiction under Article 226 of the Constitution of India can direct the official respondents to register an FIR on the basis of the complaint made by the petitioner? HELD THAT - If an act of forgery is resorted to and using such forged document a proceeding is laid in any court, the provisions of Section 195 (1)(b)(ii) of Cr. P.C., does not prohibit the victim from filing a complaint either with the police or before the magistrate under Section 156(3) of Cr.P.C. - Though in the facts of the present case, the petitioner has approached the respondent police authorities by lodging a complaint by e-mail on 03.09.2019 and thereafter on 29.10.2019, the respondent authorities did not register FIR on the basis of the complaint and on the other hand, directed the petitioner to approach NCLT since the matter was pending before such tribunal. Though in the notice issued to the petitioner with regard to the action taken on the complaint, the respondent authorities did not specifically refer to the provisions of Section 195 of the Cr.P.C., the purport of the said communication can clearly be inferred, whereby the respondent authorities wanted a complaint to be made by the concerned court under Section 340 of Cr.P.C., since, the document is already filed into the court. The restriction placed under Section 195 of the code is applicable only when a court is required to take notice judicially of the act of offence complained and the investigation thereinto by the police authorities. Thus, this court is of the view that the respondent police authorities ought to have registered an FIR on the basis of the complaint made by the petitioner and take up investigation in the matter as specified under Section 156 of the Code, instead of issuing notice claiming that a civil dispute is pending before NCLT and directing the petitioner to approach NCLT for redressal. Though this court having come to the conclusion that the respondent police authorities ought to have registered an FIR on the basis of the complaint made by the petitioner, this court cannot in a writ petition direct the respondent police authorities to register an FIR and investigate into the matter being complained of - the main relief sought for in the present writ petition of directing the respondent official to register an FIR on the basis of the complaint cannot be granted and since a notice has been issued to the petitioner informing the action taken on the basis of the complaint lodged, it is left open for the petitioner to approach the concerned Magistrate court having jurisdiction to avail remedies in accordance with law. Petition disposed off.
Issues Involved:
1. Validity of the official respondents' inaction in not registering an FIR based on the petitioner’s complaint. 2. Jurisdiction of the High Court under Article 226 of the Constitution of India to direct the registration of an FIR. Detailed Analysis: Issue 1: Validity of the Official Respondents' Inaction in Not Registering an FIR The petitioner, an infrastructure company, alleged that the 5th respondent forged a ledger statement to circumvent the Limitation Act, 1963, and filed a case before the NCLT. The petitioner lodged a complaint with the police, which was not registered as an FIR. The police directed the petitioner to approach the NCLT for redressal, citing the matter as sub judice and civil in nature. The court analyzed the scope of Section 195 of Cr.P.C., which restricts courts from taking cognizance of certain offences unless a complaint is made by the concerned court. The court referenced the Supreme Court's judgment in Iqbal Singh Marwah, which clarified that Section 195(1)(b)(ii) applies only if the offence is committed after the document is produced in court. The court held that the police have the authority to investigate cognizable offences, even if related to court proceedings, as established in State of Punjab v. Raj Singh and M. Narayandas v. State of Karnataka. The court concluded that the police should have registered the FIR based on the petitioner’s complaint, as it disclosed a cognizable offence of forgery under Section 463 of Cr.P.C. The police's refusal to register the FIR and directing the petitioner to approach the NCLT was deemed unjustified and not in line with the Supreme Court's rulings in Lalita Kumari, which mandates FIR registration if the complaint discloses a cognizable offence. Issue 2: Jurisdiction of the High Court Under Article 226 to Direct Registration of an FIR The court examined whether it could direct the police to register an FIR under Article 226. The Supreme Court in Sakiri Vasu v. State of U.P. and subsequent cases, such as Sudhir Bhaskarrao Tambe and M. Subramaniam, held that if a person’s grievance is the non-registration of an FIR, they should first approach the higher police authorities under Section 154(3) Cr.P.C. or the Magistrate under Section 156(3) Cr.P.C., rather than filing a writ petition. The court noted that the petitioner did not show evidence of approaching higher police authorities as per Section 154(3) Cr.P.C. before filing the writ petition. The court emphasized that the High Court should not ordinarily interfere in such matters when alternative remedies are available. Conclusion The court concluded that while the police should have registered an FIR based on the petitioner’s complaint, the High Court could not direct the registration of an FIR in a writ petition due to the availability of alternative remedies. The petitioner was advised to approach the concerned Magistrate court for further action. The writ petition was disposed of with no order as to costs, and any pending miscellaneous petitions were closed.
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