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TMI Blog2020 (7) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... P. VIJAYAKUMAR, ASG OF INDIA SRI. JAISHANKER V. NAIR, CGC R10 BY SRI. ARJUN AMBALAPATTA, SR. PUBLIC PROSECUTOR FOR NIA JUDGMENT S. Manikumar, CJ Instant public interest writ petition is filed for the following reliefs: a) To issue a writ in the nature of mandamus, directing the State Government to hand over investigation of gold smuggling scam, the Sprinklr, BevQ App., and e-Mobility Consultancy scams, in which the Hon'ble Chief Minister Sri. Pinarayi Vijayan and Sri. M. Shivashankaran, IAS, Former Principal Secretary to the Hon'ble Chief Minister of Kerala and Secretary to the Government of Kerala, Department of Information Technology, (respondent Nos.1 and 2) respectively, are allegedly involved, to the Central Bureau of Investigation/National Investigation Agency (respondent Nos.11/10) and the latter to conduct a just, fair and impartial investigation into the crimes and further to direct all other agencies, the State Police, the Customs and the State Government, to fully cooperate with the CBI/NIA. b) Without prejudice to the above said prayer, petitioner has also sought for a writ of mandamus or any other appropriate writ, order or direction, directing respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es responsible for putting the criminal law in motion fail or abdicate the responsibility, to seek judicial redressal by initiating a 'qui tam action'- qui tam pro domino rege quam pro se ipso in hac parte sequitur, he, who sues in this matter for the king as well as for himself - and seek a remedy in the nature of writ of mandamus. In the month of April, 2020, petitioner had to institute a petition under Article 226 of the Constitution of India, since police had failed to register an FIR against respondents 1 and 2, concerning the Sprinklr scam, in spite of a written complaint of the petitioner asserting that the allegations made against them, by him and others amount to criminal abuse of official position and power entailing in unjust enrichment which clearly constituted offences punishable under various provisions of the Prevention of Corruption Act, Indian Penal Code and IT Act. This Court admitted the writ petition and ordered notice to the 2nd respondent viz., Sri. M. Shivashankaran. The order passed in W.P.(C) (Temp.) No.129 of 2020 is extracted hereunder: "Admit. Learned Senior Government Pleader takes notice on behalf of respondents 3, 4, 11, 12 and 15; whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and joined the UAE consulate to evade police interrogation. The forgery committed by her was unearthed by the Crime Branch which found that the complaint was lodged to wreak vengeance on the said officer, who had allegedly complained to the CBI and the CVC against certain irregularities in the contracts of Air India. 8. It is further alleged that Ms. Swapna Suresh, despite the criminalor questionable background, was appointed by the 2nd respondent, Secretary to the Hon'ble Chief Minister, in exercise of his discretionary powers as Operational Manager in KSITIL. It is further alleged that she was involved in the conduct of major events like the programme arranged for the honour of Sheikh of Sharjah on 24.09.2017. It is further alleged that she was one among the VIPs, who had the permission to speak to the Hon'ble Chief Minister and the Sheikh. It is also alleged that she was associated with the conduct of Kerala Lok Sabha and she is a friend of Speaker Mr. P.Sreeramakrishnan, who inaugurated the office of a company with which Swapna Suresh is associated. The petitioner further alleged that the Hon'ble Chief Minister knows her very well, that too, her background, for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. 10. In short, it is contended that the petitioner has instituted the instant writ petition as a person aggrieved, in the enforcement of his rights, qua as a citizen he has every right, nay, even a duty to demand that crimes involving the mighty and the powerful, even putting to jeopardy national interest, which smuggling through diplomatic channels, undoubtedly constitutes to be, be investigated. It is incorrect to say that the instant petition is a PIL, for PIL is an action where a person who has not suffered any personal injury or has no vested right in him, takes up the cause of a third person, who out of his poverty, illiteracy and other like reasons, unable to approach the Court, invokes the jurisdiction of the court on his behalf. The petitioner herein is acting on his own, in the enforcement of his rights, seeking a writ in the nature of mandamus to compel the Police and other law enforcing authorities to discharge their duties, namely, investigation into the various criminal offences allegedly committed by a gang of people of which the 2nd respondent, Shivshankaran, IAS officer, is alleged to be kingpin, of which the gold smuggling scam is last in the long chain of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the cost of the revenue of the State and at the cost of the very right to life of the citizens for the right to privacy is an integral part of the very right to life (so far as the Sprinklr scam is concerned). The petitioners have no other efficacious alternative legal procedure available to secure justice than invoking the jurisdiction of this Court under Article 226 of the Constitution for a writ in the nature of mandamus and/or other remedies. (b) The gold smuggling scam, Sprinklr, BevQ app, e-mobilityconsultancy scams in which the Chief Minister and his most trusted aid Shri M. Shivashankaran, a senior IAS officer are allegedly involved, are offences of grave nature, allegedly involving even international smuggling mafia, underworld. These scams pose a threat even to national security and require immediate registration of an FIR in respect of all these scams and a meaningful and effective investigation by the CBI, NIA, Revenue and Customs authorities in full cooperation with the State Police. (c) The petitioner is unable to produce any evidence in support of his petition than to rely on the words of the leader of opposition in the State Assembly and other leaders of oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegedly involving the Chief Minister of a state and senior bureaucrats unless the State Government requests the Central Government to do so, which is too unrealistic in today's political environment. Therefore, the only option to secure a CBI investigation to bring the culprits to book is to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. 13. At the outset, Mr. Mathews J. Nedumpara, learned counsel for the petitioner, referred to the definition of "public servant" in the Prevention of Corruption Act, 1988 and submitted that the Hon'ble Chief Minister is a public servant. 14. Learned counsel for the petitioner further submitted that the Hon'ble Chief Minister and the former Principal Secretary to the Hon'ble Chief Minister of Kerala, Department of Information Technology, Government of Kerala (respondent No.2) have committed an offence under Section 13(d) of the said Act. Both of them have committed offences under the Prevention of Corruption Act, 1988 as well as the Indian Penal Code, 1860. Ms. Swapna Suresh, respondent No.5, has been arrested and the customs department has registered an FIR for the offences punishable under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Referring to the schedule under the National Investigation Agency Act, 2008, learned counsel for the petitioner submitted that the agency is empowered to exercise its jurisdiction of investigation into the violations, commissions of offences, insofar as the enumerated enactments are concerned and not otherwise. Referring to sub-section (4) of Section 6 of the Act, he submitted that the said provision does not take away the obligation of the State machinery, to register an FIR for the acts involving outside the jurisdiction of the National Investigation Agency. He also submitted that registration of an FIR under the Customs Act, can only be for recovery of amounts involved and that would not preclude the petitioner from seeking registration of FIR, in respect of offences under the Prevention of Corruption Act or India Penal Code, as the case may be. He further submitted that as a citizen, he has to discharge his duty under Section 39 of the Code of Criminal Procedure, 1973, to furnish information to the police and consequently, demand the duty to be discharged by the police, registering FIR. 21. Learned counsel for the petitioner further submitted that the petitioner has filed an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement off acts, learned Advocate General submitted that except to state that Sprinklr scam was succeeded by two other scams, viz., BevQ App and eMobility Consultancy scams, no details have been given in the statement of facts about the specific instances of involvement of, either the Hon'ble Chief Minister or others. According to the learned Advocate General, the averments are bereft of any materials and do not fall within the definition of corruption and on these bald averments, even an FIR cannot be registered. 26. Referring to the averments in paragraph (13) of the Statement of facts, learned Advocate General submitted that the petitioner has solely relied on the allegations made by the Leader of the Opposition, respondent No.15, in the print and electronic media, and sought for registration of FIR. He further submitted that no document supporting the contention that the Leader of the Opposition, respondent No.15, has made a statement in the electronic media, has been filed along with the statement of facts submitted by the petitioner. 27. Referring to paragraph (19) of the Statement of facts, learned Advocate General submitted that it is the candid admission of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his knowledge and legal contentions raised are upon the advice of his counsel. He also took us through the averments contained in paragraphs 8, 10 etc., wherein contentions that the writ petition is instituted, as a person aggrieved, still continued. 33. According to the learned Advocate General, except mentioning the name of the scams, no factual details are furnished by the petitioner. Allegations are vague and general, solely based on the statement of the Opposition Leader. Placing reliance on the decision of the Hon'ble Apex Court in Laxmibai Kshetriya v. Chand Behari Kapoor and Ors. reported in (1998) 7 SCC 469, learned Advocate General submitted that writ petition should not be entertained without proper pleadings and substantive material on record. 34. Learned Advocate General further submitted that for a writ of mandamus to be entertained, it is fundamental that there must be a right, a demand, and consequently, failure of duty, by the authorities. According to him, the foundation of the petitioner's case is only the statement of the Opposition Leader, respondent No.15. He further submitted that what is handed over to this Court is not a complaint lodged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, is answered by the Hon'ble Apex Court in Sakiri Vasu v. State of U.P. and Ors. [(2008) 2 SCC 409], wherein it is held that writ petition under Article 226 of the Constitution of India is not the appropriate remedy. 40. Placing reliance on the decision of the Hon'ble Apex Court in the State of West Bengal and Ors. v. The Committee for Protection of Democratic Rights, West Bengal and Ors. [(2010) 3 SCC 571], learned the Advocate General submitted that necessary and proper facts are not pleaded and the writ petition is politically motivated, based on the alleged statement of the Opposition Leader. On the above contentions, he submitted that the writ petition does not merit any consideration. 41. By way of reply, Mr. Mathews J. Nedumpara, learned counsel for the petitioner, submitted that when the Hon'ble Chief Minister himself has written letter dated 8.7.2020 to the Hon'ble Prime Minister of India and the Hon'ble Minister of Finance, Government of India, that the allegations have serious implications and have to be investigated in more than one angle, that statement itself would amount to an admission that there is an offence committed. If the allegations are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the instant writ petition cannot be said to be an abuse and, therefore, the decisions relied on by the learned Advocate General are not applicable. 46. Once again, referring to paragraph (123) of the Lalitha Kumari's case (cited supra), learned counsel for the petitioner submitted that it is simple and the only premise of the petitioner is, as to why FIR has not been registered, despite submission of complaint on 28.03.2020, and why a preliminary enquiry has not been conducted. 47. Learned counsel for the petitioner further submitted that, if reference is made to Section 8 of the NIA Act, 2008, to contend that all other offences can be investigated, State could have made it specifically in writing that all the scams and corruption charges can also be included in the investigation by NIA, which they have not done. He reiterated that NIA can investigate only with reference to the offences mentioned in the enactments to the schedule. 48. According to the learned counsel, scams involve investigation by multiple agencies. When the Hon'ble Chief Minister himself has written a letter to the Hon'ble Prime Minister, as well as the Hon'ble Minister of Finance and Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the respective parties, we deem it fit to address the following points: a) Whether the petitioner, as a matter of right, in a writ petition can seek for registration of FIR. Is there any remedy available to the petitioner to ventilate his grievance, when the police does not register an FIR and whether the writ petition is maintainable? b) Whether the petitioner can seek a direction to handover investigation to CBI or any other Central Agency as a matter of right? c) Whether the petitioner can seek registration of a crime by the Director of National Investigation Agency or the Director, CBI, respondent Nos.10 & 11 respectively? d) Even taking it for granted that the prayers are maintainable on the pleadings and materials, whether the petitioner has made out a strong case for issuing any directions as prayed for? e) Whether the petitioner has made out a case for issuance of a writ of mandamus? 54. From the prayers extracted above, it could be deduced that atone stage, in respect of smuggling of gold, Sprinklr, BevQ App and eMobility Consultancy scams, in prayer (3), the petitioner has sought for a direction to respondents 12, 13 and 16, viz., the CBI, NIA and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e angle warranting a thorough investigation. It is requested that an effective and coordinated investigation into this incident by all concerned is the need of the hour. The scope of the probe should cover all aspects from the source to the end utilization. Every link of this crime should be unravelled so that such incidents do not recut. I assure you that the State Government will provide all necessary assistance and support to the agencies involved in the investigation. I request your immediate intervention for an effective and coordinated investigation into this crime. Yours Sincerely, Sd/- (Pinarayi Vijayan) Shri. Narendra Modi, Hon'ble Prime Minister of India, 152, South Block, Raisina Hill, New Delhi-110 001." "D.O. No.1131/2020/CM, Dated 08.07.2020 Dear Smt. Nirmala Sitharaman ji, I invite your 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 the attempt to smuggle huge quantity of gold was concealed in diplomatic baggage makes the matter extremely serious. It is learnt that customs officials are conducting inquiry into the incident. The case has serious imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igated by the National Investigation Agency in accordance with the National Investigation Agency Act, 2008. Now, therefore, in exercise of the powers conferred under subsection (6) of Section 6 read with section 8 of the National Investigation Agency Act, 2008, the Central Government hereby directs the National Investigation Agency to take up investigation of the aforesaid case. Sd/- (Dharmender Kumar) Under Secretary to the Government of India To 1. The Director General, National Investigation Agency, CGO Complex, Lodha Road, New Delhi 2. Chief Secretary, Government of Kerala 3. DGP, Kerala" 58. National Investigation Agency Act, 2008 is an act to constitutean investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations, and for matters connected therewith or incidental thereto. Chapter III of the Act deals with investigation by the National Investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 2(1)(g) of the Act reads thus: "1. The Atomic Energy Act, 1962 (33 of 1962); 2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967); 3. The Anti-Hijacking Act, 1982 (65 of 1982); 4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982); 5. The SAARC Convention (Suppression of Terrorism) Act,1993 (36 of 1993); 6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002); 7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005); 8. Offences under- (a) Chapter VI of the Indian Penal Code (45 of 1860) [sections121 to 130 (both inclusive)]; (b) Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860)." 61. Let us consider the allegations made against the Hon'ble Chief Minister, individually and jointly with Mr. M. Shivshankaran, IAS, Secretary to the Government of Kerala, Department of Information Technology, Trivandrum. In paragraph (2), the petitioner has stated that in the month of April, 2020, he had instituted a petition under Article 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and e-Mobility Consultancy scams, in which the 2nd respondent, Sri. M. Shivashankaran, IAS is allegedly involved, and it is alleged that the 1st respondent, Hon'ble Chief Minister of Kerala, is fully aware that, it amounts to offences punishable under Section 13 of the Prevention of Corruption Act, 1988 and Sections 405, 415, 420 and 378 of the Indian Penal Code, Customs Act, and even COFEPOSA Act, for, the said transfer was in furtherance of a design to unjustly enrich, nay, to be gratified at the cost of revenue of the State. These scams pose a threat even to national security and require immediate registration of an FIR in respect of these scams, and a meaning and effective investigation by the CBI, NIA, Revenue and Customs authorities, in full cooperation with the State Police. 68. Let us consider the individual allegations made against the 2nd respondent Mr. M. Shivshankaran, IAS. 69. Petitioner in paragraph (8) has stated that he is acting on his own, in the enforcement of his rights, seeking a writ in the nature of mandamus to compel the police and other law enforcing authorities, to discharge their duties, namely, investigation into various criminal offences allegedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been made in the State Assembly, print and electronic media. As rightly pointed out by the learned Advocate General, no document has been produced by the petitioner along with the writ petition to substantiate the same. Even taking it for granted that such a statement is made, the question to be considered is whether that alone is sufficient to direct registration of FIR by the police? 74. It is the submission of the petitioner that in a matter of this nature and magnitude, it is not possible for him to produce evidence, and that is why he has sought for an direction to the Inspector General of Police and/or 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. 75. In Lalitha Kumari (cited supra), relied on by the learned counsel for the petitioner, the Hon'ble Supreme Court at paragraphs 120 & 121 held thus: "120. In view of the aforesaid discussion, we hold: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above. 121. With the above directions, we dispose of the reference made to us. List all the matters before the appropriate Bench for disposal on merits." 76. In Aleque Padamsee and Others v. Union of India and Others [(2007) 6 SCC 171], petitions therein were filed under Article 32 of the Constitution of India, 1950 (in short the 'Constitution'). The petitioners therein have approached the Court aggrieved by the inaction on the part of the official respondents, in not acting on the report lodged by two persons namely, Sumesh Ramji Jadhav and Suresh Murlidhar Bosle. Their basic grievance is that though commission of offences punishable under the Indian Penal Code, 1860 (in short the 'IPC') was disclosed, the police officials did not register the FIR and, therefore, directions should be given to register the cases and wherever necessary accord sanction in terms of Section 196 of the Code of Criminal Procedure, 1973 (in short the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mari's case (supra) and Ramesh Kumari's case (supra), we find that the view expressed in Ramesh Kumari's case (supra) related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari's case (supra) the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Minu Kumari's case (supra) and Hari Singh's case (supra). The view expressed in Ramesh Kumari's case (supra) was re- iterated in Lallan Chaudhary and Ors. v. State of Bihar AIR2006SC3376 . The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences's case (supra), Gangadhar's case (supra), Hari Singh's case (supra) and Minu Kumari's case (supra). The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to its notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. 12. Thus in Mohd. Yousuf v. Smt. Afaq Jahan and Anr. [2006 CriLJ 788], this Court observed: "The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 18. It is well-settled that when a power is given to anauthority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution. 19. The reason for the rule (doctrine of implied power) isquite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his 'Statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3). 26. If a person has a grievance that his FIR has not beenregistered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... station and such superior officer can, if he so wishes, do the investigation vide CBI v. State of Rajasthan and Anr. (2001 CriLJ 968), R.P. Kapur v. S.P. Singh [1961] 2 SCR 143 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar v. A.C. Saldanna (supra)." 80. On the aspect as to when the Supreme court and High Court under Articles 136 or 226 of the Constitution can order investigation by CBI, the Hon'ble Apex Court at paragraphs 31 and 33 in Sakiri Vasu (cited supra), ordered thus: "31. No doubt the Magistrate cannot order investigation by the CBI vide CBI v. State of Rajasthan and Anr. (Supra), but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them. "33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and Ors. v. Sahngoo Ram Arya and Anr. (2002 CriLJ 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated." 82. In this context, this Court deems it fit to consider the decision of the Hon'ble Apex Court in Anand wardhan and Another v. Pandurang and others, reported in (2005) 11 SCC 195, wherein it is held as follows: "We do not wish to make any comments about the investigation of the case or the result of the investigation. The law provides that if the police fails to investigate a case arising from a first information report lodged before it disclosing commission of a cognizable offence, it is open to the informant/ complainant to move the Magistrate concerned for appropriate order under Section 156 CrPC, or may file a complaint and obtain appropriate orders from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employee's Union (Regd.) v. Union of India (1996) 11 SCC 582: 1997 SCC (Cri) 303. It was specifically observed that a writ petition in such cases is not to be entertained." 84. When the High Court can interfere, in excise of powers under Article 226 of Constitution of India, the Hon'ble Apex Court in Divine Retreat Centre (cited supra), at para 41, held thus: "41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and noncompliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay. (2) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report in the form prescribed by the State Government giving details therein. Upon receipt of the report, the Court under Section 190 is empowered to take cognizance of the offence. Under Section 173(8), the investigating officer has power to make further investigation into the offence. 4. When the information is laid with the police but no action in that behalf was 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 the Magistrate is required to inquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the concerned police to investigate into the offence under Chapter XII of the Code and 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 complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te legal action by way of registration of FIR under the general provisions of law and the provisions of Prevention of Corruption Act, 1988; (c) order for rule nisi in terms of the prayers above; (d) pass such further order(s) and/or direction(s) as this Hon'ble Court may deem fit and proper." 87. The Hon'ble Apex Court, after considering the above prayers, in Kunga Nima Lepcha (cited supra), held thus: "13. However, the remedies evolved by way of writ jurisdiction are of an extraordinary nature. They cannot be granted as a matter of due course to provide redressal in situations where statutory remedies are available. It is quite evident that the onus is on the petitioners to demonstrate a specific violation of any of the fundamental rights in order to seek relief under writ jurisdiction. 14. In the present petition, the petitioners have made a rather vague argument that the alleged acts of corruption on part of Shri Pawan Chamling amount to an infringement of Article 14 of the Constitution of India. We do not find any merit in this assertion because the guarantee of "equal protection before the law" or "equality before the law" is violated if there is an unreasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over ongoing investigations. The scope for intervention by the trial court is hence controlled by statutory provisions and it is not advisable for the writ courts to interfere with criminal investigations in the absence of specific standards for the same. "18. Hence, it is our conclusion that the petitioners' prayer cannot be granted. This Court cannot sit in judgment over whether investigations should be launched against politicians for alleged acts of corruption. The Supreme Court of India functions as a constitutional court as well as the highest appellate court in the country. If the Supreme Court gives direction for prosecution, it would cause serious prejudice to the accused, as the direction of this Court may have far-reaching persuasive effect on the court which may ultimately try the accused. It is always open to the petitioners to approach the investigative agencies directly with the incriminating materials and it is for the investigative agencies to decide on the further course of action. While we can appreciate the general claim that the efforts to uncover the alleged acts of corruption may be obstructed by entrenched interests, in this particular case the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation. 9. In view of the settled position in Sakiri Vasu's case(supra), the impugned judgment of the High Court cannot be sustained and is hereby set aside. The concerned Magistrate is directed to ensure proper investigation into the alleged offence Under Section 156(3), Code of Criminal Procedure, and if he deems it necessary, he can also recommend to the S.S.P./S.P. concerned change of the Investigating Officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). 10. Parties may produce any material they wish before the concerned Magistrate. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court. 11. The Appeals are allowed in the above terms." 89. Though much reliance has been placed on Lalitha Kumari's case (cited supra), for registration of an FIR, in Fr. Sebastian Vadakkumpadan v. Shine Varghese and Ors. (2018 (3) KLT 177), a Hon'ble Division Bench of this Court held that Lalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusions but because of "its ratio and the principles, laid down therein". In Arnit Das (1) v. State of Bihar, (2000) 5 SCC 488 the Supreme Court has further observed that a decision not expressed, not accompanied by reasons, and not based on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. And this is the rule of sub silentio. 56. Lalitha 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. .......... 71. 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 exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to be infringed; (c) that the person aggrieved complained to an authority; and (d) that the authority concerned refused to act. 76(c). Here, Shine seemed to have rushed to the Court posthaste, before the ink dried on the paper, as if it were. So, we find it hard to believe that there was proper demand and refusal, the essential elements for a mandamus. 77. Authoritative as Lalitha Kumari is, it has not disturbed the proposition of law that this Court while exercising its jurisdiction under Article 226 does ensure that the suitor has no other efficacious, alternative remedy. So the precedential value of Aleque Padamsee, All India Institute of Medical Sciences, Gangadhar, Sudhir Bhaskarrao Tambe, Sakiri Vasu, Kunga Nima Lepcha, just to list out a few, remains undisturbed and undiminished." (emphasis supplied) 90. In Sunil Gangadhar Karve v. State of Maharashtra and others [(2014) 14 SCC 48], the Hon'ble Apex Court, at para 4, held thus: "4. We have noted this submission of Mr Rohatgi. There are, however, two difficulties in his way. Firstly, that if the police officers decline to look into the complaint, the ordinary procedure under the Criminal Procedure Code is avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclose a prima facie case calling for an investigation by the CBI or any other similar agency. We respectfully concur with these observations." 92. In Common Cause ( A Registered Society) and others v. Union of India and others reported in (2017 (11) SCC 731, the Hon'ble Supreme Court, while considering the question whether Special Investigation Team should be constituted for investigation into incriminating material seized in raids conducted on a group of companies, at paragraph 283, held thus: "283. We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , cautiously and in exceptional situations where it becomes necessary to provide credibility and instil 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 CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations." 94. In Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Others v. Sahngoo Ram Arya and Another [(2002) 5 SCC 521], the Hon'ble Supreme Court, on consideration of the question as to whether High Court can direct enquiry by CBI under Article 226 of the Constitution, held that the High court must reach a conclusion based on the pleadings and material on record that a prima facie case made out against a person and merely because a party made allegations against a person, High Court cannot direct CBI to investigate as to whether a person committed an offence as alleged or not. Paragraph 6 is relevant to the context and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oors of the Court. The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfil its constitutional promises. [See S.P. Gupta v. Union of India, People's Union for Democratic Rights v. Union of India (1982) 2 SCC 494, Bandhua Mukti Morcha v. Union of India and Others (1984) 3 SCC 161 and Janata Dal v. H.S.Chowdhary (1992) 4 SCC 305)] (ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis-a-vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. [See Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and Others v. Home Secretary, State of Bihar (1980) 1 SCC 81)] (iii)Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi v. Rani Jethmalani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi v. Union of India and Others 1989 Supp (1) SCC 251) (viii) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Others (1987) 1 SCC 227). (ix) The Court in special situations may appoint aCommission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See Bandhua Mukti Morchai, Rakesh Chandra Narayan v. State of Bihar (1989) Suppl 1 SCC 644 and A.P. Pollution Control Board v. Prof. M.V. Nayudu (1999) 2 SCC 718). In Sachidanand Panday and Another v. State of West Bengal and others [(1987) 2 SCC 295], this Court held,- "61. It is only when courts are apprised of gross viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olves larger public interest, gravity and urgency must be given priority over other petitions. (7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. (9) The misuse of public interest litigation is a serious matter of concern for the judicial process. (10) Both this Court and the High Courts are flooded with litigations and are burdened by arrears. (11) Frivolous or motivated petitions, ostensibly invoking the public interest detract from the time and attention which courts must devote to genuine causes. (12) This Court has a long list of pending cases where the personal liberty of citizens is involved. (13) Those who await trial or the resolution of appeals against orders of convic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliefs can be granted in a writ petition, held that the discretion must be exercised by the Court on the grounds of public policy, public interest and public good, that the writ is equitable in nature and thus, its issuance is governed by equitable principles. 100. It was further held that, while granting such a writ, the Court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings and that, in order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be a frivolous, and must be filed in good faith. It was also held that the authority against whom mandamus is issued, should have rejected the demand earlier and therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. But at the same time it was held that a demand may not be necessary when the same is manifest from the facts of the case. 101. With respect to the contention advanced by learned counsel for petitioner that a close relative of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of facts to the Court. Parties are not entitled to choose their own facts to put- forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinize the nature and content of the right alleged to have been violated by the authority." 103. Indeed that Section 39 of the Cr.P.C enables the public to set the criminal law in motion, but if the officer in-charge, fails to register an FIR, the Hon'ble Supreme Court as well as this Court, in the above decisions have considered whether the only remedy open to the complainant or the first informant or the member of public to approach the High Court under Article 226 of the Constitution of India and that there is no other remedy provided under any other law, and answered that writ is not the remedy. 104. It is clear from the above provisions in the Cr.P.C., 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 complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. 107. In Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. [(2003) 2 SCC 107], enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, the Hon'ble Supreme Court observed thus: "7........ that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged." 108. In Union of India v. Mangal Textile Mills (I) (P) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion; and the Director of Vigilance and Anti-corruption Bureau, Trivandrum. For the first time, after the filing of the instant writ petition, legal notice has been sent to the Director, Central Bureau of Investigation, New Delhi; Director, Enforcement Directorate, New Delhi; and the Director, NIA, New Delhi. Before seeking for a prayer for mandamus against the CBI and NIA to register an FIR, no complaint has been made. 111. Remedy under Article 226 of the Constitution of India is extraordinary. Exercise of power to entertain a writ petition arises if only the person, who alleges inaction on the part of the statutory authorities, has no other alternative and efficacious remedy under the Statute. True, the Hon'ble Apex Court has also held that there is no fetters in entertaining a writ petition under Article 226 of the Constitution of India, whether a person complains of violation of his fundamental or statutory right, but at the same time, it should be borne in mind that if there is an adequate and efficacious remedy available to such person, to vindicate his grievance, then the self imposed restraint on the writ court to exercise the extraordinary jurisdiction shall be applied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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