M.Vijaya Kumar v. The Superintendent of Police & Ors.

HONOURABLE SRI JUSTICE K.C. BHANU WRIT PETITION No.25615 of 2012 ORDER: - This Writ Petition is filed seeking to issue writ of Mandamus declaring the inaction of the respondents to initiate the action against the culprits on the report/complaint of the petitioner and his wife, dated

22.06.2012, 20.07.2012 and 26.07.2012 as illegal and arbitrary and prosecute the culprit and protect the property of the petitioner admeasuring 720 square yards in Survey No.143, situated at Gajula Rajam Basthi, Kothagudem town and Mandal, Khammam district duly rendering necessary protection to the petitioner and his wife.

The grievance of the petitioner is that in spite of his complaints, dated 22.06.2012, 20.07.2012 and 26.07.2012, the official respondents are not registering the case against the culprits.

Heard.

There cannot be any dispute that when a case relating to a cognizable offence is reported to police, it is the statutory duty of police to register a case. If police are not registering the case, the complainant is at liberty to give report to the Superintendent of Police as contemplated under Section 154 (3) Cr.P.C. Even still there is inaction on the part of police in registering the case, the remedy of the complainant is to file a complaint under Section 190 or 200 Cr.P.C.

An alternative remedy is available to the petitioner in case of non- registering the case. In a decision of the Apex Court in SAKIRI VASU V. STATE of U.P. AND OTHERS. it is held thus: [1]

In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154 (3) Cr. P. C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, 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.

In another decision in GANGADHAR JANARDAN MHATRE V STATE OF MAHARASHTRA & OTHERS, it is held thus: [2]

When the information is laid with the Police, but no action in that behalf is 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 enquire 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 to direct the Code. In case he the police concerned empowered investigate into 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 complaint under Section 203 of complaint/evidence recorded prima facie discloses 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 Employees' Union (Reg.) through its President v. Union of India and others (1997) Supreme Court Cases (Crl) 303. It was specifically observed that a writ petition in such cases is not to be entertained.

No doubt, alternative remedy is not a bar for invoking the jurisdiction under Article 226 of the Constitution of India. But, the petitioner must show that her case falls under any one of the three categories of cases as held in HARBANSLAL SAHNIA AND ANOTHER V. INDIAN OIL CORPN. LTD. & OTHERS [3] , wherein it is held thus:

So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of in spite of In an appropriate case, compulsion. availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three the writ petition seeks contingencies: (i) where 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 and is challenged. [See Whirlpool Corporation v. Registrar of Trade Marks. Mumbai and Ore.] The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and nonexistent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.

Case of the petitioner does not fall under any one of the above three categories of cases.

Miscellaneous petitions, if any, pending in this writ petition shall stand closed.

21.08.2012 ________________ K.C. BHANU, J HONOURABLE SRI JUSTICE K.C. BHANU WRIT PETITION No.25615 of 2012

21.08.2012 [1]