Writ Jurisdiction For Registration Of FIR Can't Be Invoked Without Availing Statutory Remedies Under CrPC: Allahabad High Court

"A complainant has statutorily engrafted remedies to ensure that his complaint is taken to its logical end. Thus, he must first exhaust said remedies and cannot invoke extra-ordinary writ remedy as a matter of course, even when crime is not registered and there is no progress in the investigation," observed a Division Bench comprising of Justices Chandra Dhari Singh and Ramesh Sinha.

It has however made it clear that if it is demonstrated that impugned action or inaction is vitiated by violation of principles of natural justice, or being bereft of jurisdiction or violates any statutory provision or causes breach of fundamental rights, then non-availing of alternative remedy cannot restrain the informant or victim to successfully invoke the writ jurisdiction of the superior Court.

Background

In the case at hand, the Petitioner had moved the High Court seeking that a writ in the nature of mandamus be issued to the Police authorities for registration of FIR on his complaint for alleged execution of a forged and fraudulent sale deed.

The Petitioner had submitted that he had moved an application for registration of FIR before the concerned SHO, had submitted an application before the Superintendent of Police and had also approached the Director General of Police, but all in vain.

The State had questioned the maintainability of this petition while stating that if the petitioner is aggrieved by the fact that his first information report is not being registered, he has an alternative remedy to approach the Magistrate concerned under section 156(3) CrPC.

Findings

The Bench noted that the Petitioner has the following alternative remedies under the CrPC:

(i) Section 154(3), which provides for a complainant to approach the Superintendent of Police if the police station's SHO refuses to register the FIR;

(ii) Section 156(3) r/w Section 190, which provides for the complainant to move a Magisterial Court for registration of an FIR in case the police refuses to register it; and

(iii) Section 200 of CrPC which provides for filing of a complaint before the Magistrate.

Thus, the question before it was whether a writ of mandamus can be issued under Article 226 of the Constitution directing the police to register an offence under Section 154(1) CrPC in a petition raising grievance that despite informing the police about the commission of cognizable offence, no FIR is lodged.

The Bench was of the opinion that the power to issue a writ of mandamus has its own well defined self-imposed limitations, one of which is availability of alternative efficacious remedy.

In cases pertaining to non-registration of FIR by the Police, the Court noted, there are four different remedies available under CrPC.

"These statutory remedies cannot be branded as non-efficacious or onerous," the Court remarked while holding that an informant whose first information does not lead to registration of offence under Section 154 CrPC is not remedy-less and therefore, the constraints exercised by the writ Court while issuing writ of mandamus come into play.

The Bench held,

"The writ remedy is extra-ordinary remedy and equitable remedy. Further, the writ Court need not entertain a writ petition merely because a case is made out of alleged inaction or negligent in acting on an issue by an authority vested with power, in these cases to register crime/to complete investigation into crime, if statutorily engrafted remedy is available to seek redress on such grievance. Even if, a case is made out on alleged illegal action by statutory authority, which require redressal, ordinarily writ Court does not entertain the writ petition if the aggrieved person has not availed other remedies, more so, such remedies are incorporated in a statute."

The Petitioner in this case had placed reliance on the landmark ruling in Lalita Kumari v. Government of UP & Ors., (2014) 2 SCC 1, where it was held that upon receipt of information by a police officer in-charge of a police station disclosing a cognizable offence, it is imperative for him to register a case under Section 154 of the Code.

The Division Bench however held that the above precedent would be of no avail to the Petitioner inasmuch as the same did not lay down any law in respect of remedies available to the informant under CrPC, to be invoked in case of failure on the part of the police to perform its statutory duty under Section 154(1)/154(3) CrPC as a sine qua non for seeking writ of mandamus.

The Bench then proceeded to explain the alternative-remedies, available to a person aggrieved by non-registration of FIR. It observed,

"The Code of Criminal Procedure provides various avenues before the informant/victim to initiate criminal prosecution. The first avenue is of lodging of FIR under Section 154(1)/154(3) which can be availed by the victim and as well as a stranger to the offence, provided the first information discloses commission of cognizable offence. The lodging of FIR under Section 154 Cr.P.C. sets the investigative machinery into motion without prior permission of the Magistrate as is otherwise required for non-cognizable offences.

The second avenue available to the victim and as well as a stranger to the cognizable offence, is under Section 156(3) by approaching the concerned Magistrate by informing commission of cognizable offence. The Magistrate can then conduct an enquiry himself or direct the concerned police station to register the offence alleged, thereby triggering the investigation.

The third avenue available is under Section 190 Cr.P.C empowering the competent Magistrate to take cognizance of any offence upon receipt of complaint of facts containing allegation constituting the offence, or upon a police report of such facts or upon information received from any person other than a police officer, or upon his own knowledge of commission of cognizable and as well as non-cognizable 9 offence, except offences punishable under Chapter XX of IPC, for which procedure prescribed under Section 198 Cr.P.C. is to be adhered to.

The fourth avenue is under Section 200 Cr.P.C where a complaint, oral or in writing if made before the competent Magistrate leads to hearing by the Magistrate on the question of taking cognizance of offence or not and if it is found that complaint discloses commission of any offence punishable in law then the Magistrate issues summons to the proposed accused on appearance of whom statements of rival parties are recorded and the Magistrate decides on the question of framing of charge or discharging the accused. If charges are framed then trial proceeds."

In this backdrop, the Court dismissed the instant petition with a direction to the Petitioner to avail his alternative remedies first.

Inter alia, the Court answered two peripheral issues arising in this case:

1. Can relief of writ of mandamus be denied to the informant merely on the ground that the informant is not an aggrieved person or victim and whether such person becomes functus officio after informing the police of commission of cognizable offence?

The Court observed that a bare perusal of terminology employed by the legislature in Section 154 CrPC discloses that even a stranger to the offence can inform the police about commission of any cognizable offence.

The Court explained that the object behind this was that legislature did not want that any cognizable offence committed in the society should go un-investigated and untried if found to be prima facie committed.

"By restricting the connotation of the expression "informant" to that of "victim" would defeat this object. Accordingly, once Section 154 enables even a stranger to the cognizable 20 offence to invoke statutory powers of the police of registration of offence (which is now held to be mandatory by the verdict of Apex Court in Lalita Kumari), then the act of failure of police to perform this statutory duty can certainly accrue cause of action to the stranger to seek writ of mandamus under Article 226 of the Constitution of India from the superior Court to compel the police to perform its statutory duty under Section 154 Cr.P.C.," the Court held.

2. Whether proposed accused in the first information is entitled to a hearing before the writ court in a petition seeking mandamus under Article 226 directing the police to register the FIR under Section 154 CrPC?

The Court observed that the terminology of Section 154 CrPC does not contemplate any prior hearing to the proposed accused before registration of cognizable offence.

It held, "Thus, the natural consequence that follows is that while issuing writ of mandmus directing the police to perform its statutory duty under Section 154 Cr.P.C the accused is not required to be heard."

Case Title: Waseem Haider v. State of UP & Ors.

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