Calcutta High Court Criticizes Party For Invoking Writ Jurisdiction For Registration Of FIR Against Police Officials Over Alleged Violence

The Calcutta High Court on Tuesday set aside a single-judge order directing registration of FIR against certain police officials of Baruipur district for alleged violence, while exercising writ jurisdiction under Article 226 of the Constitution.

Questioning the perpetual practise of approaching the High Court under Writ Jurisdiction when there are alternate remedies available under other statutes, a bench of Chief Justice T.S. Sivgananam and Justice Hiranmay Bhattacharya orally remarked:

“How is your writ maintainable? Why do you not avail remedy (under 156(3) CrPC)? Why short circuit to the writ court? The remedy is under a statute, and you go before a judicial magistrate. Here in writ jurisdiction, on affidavits, how can we give a positive direction for registration of FIR? This has become a routine affair. You have virtually converted the single-bench residuary determination to a Magistrates court. Day in and day out we are seeing…it is a surprise for me…this process in unknown to law. There are umpteen decisions of the SC, rendered by Justice Markandey Katju who says these cases should not be entertained under 226. The magistrate is there to ascertain the facts of a case…he can monitor investigation or issue any positive directions.”

The Court was hearing State's appeal against the interim order of single bench directing for the registration of an FIR over alleged abuse of power by police officials. The writ petitioner alleged that certain police officials of Baruipur, WB, were involved in firing at the victims, including the petitioner. It was alleged that upon filing a complaint with the Superintendent of police, no FIR was registered in the said complaint.

The division bench wondered whether such a positive direction could have been issued by a writ court in the absence of any specific finding that there was deliberate failure on part of the police in filing a complaint reporting a cognizable offence. Chief Justice Sivagnanam orally remarked:

“Supreme Court has laid down restrictive guidelines for when writ court can entertain such petitions under 226…even then there needs to be a specific finding. It is a worry for the Court. This trend is going far beyond. We will send it back, and the Court will decide whether the writ was maintainable and why the petitioner should not be relegated to avail the remedy under CrPC...somewhere we need to draw the line.”

In parting the Court said before a writ petition of such a nature is entertained, it has to be considered whether a writ of mandamus is maintainable when a remedy has been provided under Section 156(3) of the CrPC.

"The argument of the petitioner is that such remedy is not efficacious. We are not persuaded to accept such a broad submission. Admittedly, powers of the judicial magistrate under 156(3) is wide enough to order an investigation, and the magistrate will be better able to appreciate the factual matrix to consider as to whether 156(3) needs to be exercised. In our prima facie view, by way of affidavits it would be very difficult for a writ court to come to a finding that a positive direction needs to be issued under Article 226 for registration of FIR. We are conscious of the fact that there may be exceptional circumstances where this may not be fully barred. Nevertheless, the court at first instance deems fit to question the petitioner as to why he has bypassed the remedy available under 156(3) CrPC and resorted to Article 226 of the Constitution.”

Case: State Of West Bengal And Ors. Vs Sirajul Islam Gharami And Ors.

Coram: Chief Justice T.S. Sivgananam and Justice Hiranmay Bhattacharya

Citation: 2023 LiveLaw (Cal) 181