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TMI Blog2018 (5) TMI 2097X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar [ 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 judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducts its affairs, Shine claims, as per the Code of Canons of the Eastern Churches, ( the Code of Canons ) and its bye-laws. Those Cannons and bye-laws also cover the ecclesiastical elements-church's properties. 5. Diocese's Arch Bishop is Mar George Alancherry; its finance officer is Fr. Joshy Puthuva, a priest and one of the Pro-Vicar Generals is Fr. Sebastian Vadakkumpadan. 6. A couple of years ago, the Diocese wanted to establish a medical college. For that purpose, in 2015, it purchased five pieces of land for ₹ 58,78,25,930/-, most of which it borrowed from banks. The proposal not fructifying and the debt mounting, the Diocese wanted to sell away some of its other properties. In March 2016 the Diocese's Finance Council entrusted the task to Fr. Joshy and Fr. Sebastian. Later, the Consulters' Forum, another administrative wing, after accepting the Finance Committee's proposal, wanted those two persons to sell the land subject to, among other things, these conditions: (i) The land must be sold at an average price of ₹ 9,00,000/- per cent ; (ii) all the five properties must be sold as a single lot. 7. In sum, the Diocese decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he task of prosecuting the perpetrators: he filed the Ext. P1 complaint before the Station House Officer, Central Police Station, Ernakulam. But the SHO refused to register a crime, nor did he issue a receipt, his refrain being that he had instructions from higher-ups not to register any crime concerning Syro-Malabar Church Land-deal issue. Even the Commissioner of Police, Kochi, has not entertained Shine's request. So Shine filed WP (C) No. 5522 of 2018, seeking mandamus to the police officials to register a crime and to investigate it. (b) W.P.(C) No. 5997 of 2018: 14. As Shine Varghese did, Martin Payyappilly, another parishioner, too, complained to the police about the same alleged offence. He suspected that the police had not acted on his complaint because Saju Varghese had been interfering and influencing. Meanwhile, Martin came to know that Original Petition (Crl.) No. 64 of 2018, at the behest of another parishioner, was pending before this Court. And it dealt with the same issue. So he filed W.P.(C) No. 5997 of 2018, complaining that the police's refusal to register a crime and this Court's delay in dealing with the OP (Crl.) will defeat the ends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izable offence? 21. On the technical front, Shri Viswanathan stressed on issue estoppel. He pointed out that before Shine, three others had lodged similar complaints and raised identical issues: that the appellants have committed a crime. The circumstances are the same, the allegations are identical, and the accused, too, are the same. According to him, in one instance, a competent criminal court has ruled that the matter is of civil in nature. So issue estoppel, he asserts, applies on all fours. In the end, Shri Viswanathan has summed up his submission and urged us to allow the writ appeals for, according to him, the impugned judgment could not be sustained on the touchstone of established legal principles. 22. The other learned counsel appearing for the remaining appellants, besides adopting his arguments, have supplemented with their own, supplying what they felt to be further justification to have the impugned judgment nullified. The Respondents': The Public Prosecutor: 23. The learned Public Prosecutor has submitted that the complainant approached the police on 16th January 2018, submitted a compliant, but never bothered even to collect the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Grievance? 28. A member of a Christian congregation, a Diocese, complains to the police about the office bearers' alleged misdeeds amounting to cognizable offences. On the very same day or the next day, he files a writ petition. He alleges that the police have refused to register an FIR. So he wants this Court to direct the police to register a crime and investigate it. The Issues: 29. (I) This Court, per a learned Single Judge, entertained the writ petition under Article 226 of the Constitution; a learned Single Judge rendered the impugned judgment, undoubtedly, by exercising criminal jurisdiction. In the face of Clause 10 of the Letters Patent, does an intra-court appeal lie against that judgment? (II) Other parishioners earlier filed similar complaints against the same set of people that they had committed cognizable crimes. In one instance, a competent court has held that the allegations are of civil nature. This finding remaining unaffected, does the principle of issue estoppel, first and foremost, affect the writ petition? (III) The public law remedy under Art. 226 of the Constitution of India permits the Constitutional Courts to judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thereafter, drawing parallels between clause-15 of Letters Patent and Section 5 of Kerala High Court Act, the Division Bench has held that the restrictions contained in clause-15 of the Letters Patent are deliberately not incorporated in Section 5 of the Kerala High Court Act; therefore, there is no exclusion of the orders passed by a learned Single Judge in exercise of a criminal jurisdiction. Pertinently, as was observed in the order, earlier the same line of reasoning was advanced and accepted in Rugmini Ammal v. Narayana Reddiar 2000 (2) KLJ 394 and that conclusion later stood affirmed by the Supreme Court in Narayana Reddiar v. Rugmini Ammal 2007 (12) SCC 611. 33. Given the emphatic enunciation of law by a co-equal Bench of this Court, we reckon--nay, we are bound to hold--that the intra-court appeal is eminently maintainable. Issue No. II: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uble jeopardy.... 38. The issue of estoppel stands merged, as observed by the Supreme Court, [State of Jharkhand v. Lalu Prasad Yadav, (2017) 8 SCC 1] 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. 39. That said, we ought to necessarily observe that given our 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. Issue No. III: Does the Supreme Court in Lalita Kumari 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? 40. The complainants, faced with a specific procedure under the Code on how to maintain a criminal complaint, have nevertheless anchored their arguments on wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrest of the accused is not. Yet Lalita Kumari recognizes exceptions to the mandatory crime-registration. In certain cases the police may hold a preliminary inquiry before their registering an FIR. The categories of cases requiring preliminary inquiry (to be completed in a week's time) are--not exhaustive, though--these: (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 the delay. (d) Holding: 45. Thus, distinguished from its ratio (covering many counts and issues), 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. (e) Ratio v. Obiter v. Holding: 46. Mostly we use both ratio and holding interchangeably, if not indiscriminately. But there exists a discernible difference. Ratio or ratio d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the part of an officer in charge of a police station to record the information referred to in Sub-Section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.] , in Chapter XII, of the Code deals with Information to the Police and their Powers to Investigate . Any person may present to the police a signed complaint or an oral one about a cognizable offence. If the information is oral, the police must reduce it to writing, read it over, and get it signed by the complainant. Then, a police officer must record the substance of the complaint in the book kept for that purpose. And the officer must supply a copy of the recorded information to the complainant, as well. 58. Sub-Section (3) provides for the remedial action the complainant can take if the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to act, the complainant can act under section 190 [Section 190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.] read with section 200 Section 200. Examination of Complaint: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation', much less 'trial'. Suffice it to say that the first complaint has been very much pending and progressing. (b) Second Complaint: 64. One Polachan Puduppara filed another complaint, said to be identical, on 20th January 2018. It was dismissed on 2nd February 2018. (c) Third Complaint: 65. Martin Payyappilly lodged another complaint. He took the route as Shine did: he filed W.P.(C) No. 5997 of 2018, complaining against the alleged police inaction. And that writ petition was disposed of on the same lines of Shine's. But the record reveals that, soon after Martin lodging the complaint, the police recorded his statement on 5.2.2018. He did not reveal that in the writ petition. In fact, the learned Public Prosecutor produced before the learned Single Judge a copy of Martin's statement recorded by the police. And that statement's veracity remains unrebutted. 65(a). Despite the police's recording his statement, Martin nowhere mentioned about it. It brooks no contradiction that a writ petition is essentially an exercise in equity. And the suitor coming to the court with clean hands is a sine qua non. Suppression of mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld 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: 72. Given the statutory scheme, in Aleque Padamsee v. Union of India (2007) 6 SCC 1, the Supreme Court, after referring to its many earlier decisions, has observed that whenever the police receives any information about the alleged commission of a cognizable offence, they must register an FIR. The Court emphasised: There can be no dispute on that score. Then, it went on to answer an identical question as is before us now: Can a writ be issued to the police authorities to register the crime? In other words, what course should a court adopt if a person petitions that the police have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant must avail of his alternate remedy to approach the concerned Magistrate Under Section 156(3), Code of Criminal Procedure, and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation. (italics supplied) 75. The writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. The writ court, however, will not initiate an investigation. That function clearly lies in the domain of the executive, and it is up to the investigating agencies themselves to decide whether the material produced before 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 vis- -vis an aggrieved person's approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shine showed: no sooner had he submitted his complaint than he rushed to the Court-in 24 hours. 79. To conclude, we may observe that 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. And we do so. 80. Martin Payyappilly's writ petition, too, suffers on the count of alternative remedy, as does Shine's. That apart, his writ petition also suffers from another fatality: the suppression of material fact. Despite the police recording Martin's statement after his complaint, he did not choose to disclose this fact before the Court until that fact was irrefutably brought before the Court by the prosecution. So the judgment in W.P.(C) No. 5997 of 2018 is set aside, and writ petition dismissed. 81. As we pronounced on the threshold issue, we have not addressed the other issues-including the one about prima facie case or a single crime attracting more than one complaint. 82. Let the complainants take comfort that the race is not always to the swift, nor the battle to the strong... but time and chance happeneth to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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